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NRAM Oridinary Cause - NRAM loan - In the face of a S78 Dispute.


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My advanced apologies for what is a very long and complex first post.

I have been lurking and reading for over a year though...

 

Basic facts as follows: I am based in Scotland....

 

NOT working as I lost my job due to long term absence following a breakdown. Cause of my breakdown was a combination of work stress and creditor stress. Total unsecured debts approx £50K

 

I’m NOT receiving benefits as I’m unable to deal with the process due to my health and it seems there would be very little to gain anyway...

My Partner (not married) brings in approx £600 - £750 per month; under 24 hours so no WFTC.

1 Child in secondary education. – This IS the sole household income.

 

All priority debts have been

– prioritised

– No mortgage or utility arrears

– almost no equity in property (£10K max) which is in joint names anyway.

 

Sheriff’s Officers appeared at the door this week to serve an Initial writ on behalf of a company

(let’s call them XBANK) I would prefer remain nameless for the moment .

Amount claimed circa £10K-£15K .

 

Money claimed is in relation to a loan I applied for in 2005.

Despite the fact I made ‘payments’ to this loan I have some reasonable doubt as to whether the money was actually received into my bank account at all!!

In short whether the loan was actually taken at all....

 

– It was meant as a consolidation loan (Pressure from old Student Loans)

– And I have no record of getting the money;

actually to be fair I don’t HAVE bank records for the time..

 

 

. However, after the agreement was returned there was some delay in transferring the cash

- I have copies of letters I sent to XBANK at the time cancelling the loan in frustration.

 

(The SLC were eventually paid off by other means...

So, IF I got this money where it went is lost on me..

. That’s not to say I absolutely CAN prove the negative, or are even 100% sure myself but...

I simply don’t think I got this money from them!).

 

I believe repayments were taken from my account in error due to XBANK holding a Direct Debit mandate – though these payments were quite large,

my income at the time was such that this went unnoticed by me as I rarely checked the (joint) account in question and my partner (who dealt with day-to-day finances) assumed the amounts being debited were valid...

 

Post-2008 a change of work circumstances started to impose financial pressure.

By early 2011 it was apparent there were serious problems and I reviewed my position.

 

 

I wrote to creditors promptly with a reduced payment offer based on quick calculations and forwarded a full SOA about three weeks later...

 

I suffer from a stress related condition.

Consequently,

I Advised creditors at an early stage that for this reason (and general protection) advised that I would deal by letter only.

 

This action required cancellation of all D/D mandates with reduced payments being made by electronic transfer.

 

XBANK were obstructive

– for the first few months they refused to give their bank details to facilitate electronic payment – necessitating the use of cheques and postal orders.

 

 

Later on they attempted to confuse matters by changing account reference numbers

– at one point writing to me to tell me that the account number I was using was wrong;

despite the fact it was the one they were quoting in their letter!!

 

In mid 2011,

due jointly to work stress and stressors imposed by creditors (including XBANK)

I suffered what amounts to a nervous breakdown.

I was signed off work about that time following a serious

(stress induced and life-threatening) medical emergency.

 

All creditors were informed of this and provided with copies of my hospital discharge letter.

 

On partial recovery in that latter part of 2011 I decided to examine what I owned and to whom in some serious detail as it was clear some things simply did not add up!

 

S78 requests were duly issue to allow me to start this process with a view to making a fresh offer to my creditors

- By this stage I had been off work ill for some months with no sign of a let-up in terms of the stressors that were keeping me down.

Obviously this had caused further reductions in income.

 

As an aside my review of my accounts was interesting...

 

Of three credit card accounts I had been paying it seems one is a ‘phantom’ account in a misspelled form of my name.

– A card I was never issued with, never used.

 

 

After a long battle with the issuer (Barclaycard),

and after due warning,

I have this week written up a formal complaint to the OFT about their conduct.

– They have NOT complied with the S 78 request and I am fully denying liability in respect of their claims...

 

One credit card company has sent me a copy of what I believe was a magazine application and not a proper agreement

– However;

I did use that card and am making token payments (£25/Month) to them.

And hope to make a full and final offer once I am on my feet...

 

The third has sent me what is very plainly a FORGED document..

. virtually illegible and so badly PhotoShopped the white space around the cut-out signature actually covers some of the (very fuzzy and unreadable) text

– clearly a serious (possibly criminal) issue.

However – I did use that card and again on that basis am making the £25/Month repayment....

 

XBANK , however have, as I said, been quite uncooperative with me in terms of enquiries.

 

XBANK were obstructive – at first refused to give their bank details to facilitate electronic payment, and have repeatedly tried to claim they did not receive my SOA – DESPITE my sending multiple copies on multiple occasions. (This is a tactic also used by others).

 

Interestingly though one of their letters mentioned PPI

– Which I queried.

 

 

Having been partly self-employed, and well-wise for many years to the uselessness of PPI it is something I would NEVER have signed up for...

 

On pointing this out to XBANK they refunded the PPI almost without question!

 

However – since that refund XBANK’s actions have become ever-more obstructive.

 

The S78 request was made in October Last year and to date has not been met.

I have also queried whether loan was receive at all;

and they have simply point-blank refused to answer me! Or at least answer me coherently!

 

In view of their ‘stonewall’ attitude I had no real alternative but to stop making the reduced payments. And had hoped this would provoke a reaction... They continued to ignore me, totally ignoring several letters, simply sending further demands for payment...

 

On December the 31st 2011 I wrote to them saying that whilst I was open to a dialogue liability for the sums claimed was denied that the account was disputed following a valid S78 request that had not been met...

 

Their response was silence save for some ‘standard’ reminders - each of which was responded to with a covering letter and a copy of my letter of December 31st...

 

Meanwhile my health

– thanks to the stress I was being placed under by various creditors

– was not improving!

 

 

In early 2012 my employment terminated due to being off for nearly a year and their inability to maintain my post.

 

At the end of May 2012 I received what XBANK now claim was a “formal demand letter”

– that was replied to on June the 1st in similar vein to my previous responses to them..

. Pointing out that the account was disputed...

They ignored that...

 

In mid-June I received a letter from their lawyers

– I responded with a copy of my letter to their client together with a letter to them pointing out that the account was subject to a serious lawful dispute...

That was ignored....

 

It’s important to bear in mind that the actions of my creditors (and XBANK are not alone in this) HAS contributed to my continued ill-health. I remain under treatment for what is in essence a serious psychiatric injury; one that has cost me my job, my income – my career ultimately...

 

In view of the level of harassment I was experiencing from XBANK, its refusal to engage with what are legitimate complaints I felt that my only alternative was to lodge a complaint with the OFT

- I believe that due warning of this was only fair, and wrote to XBANK on July 5th giving them due notice...

 

I was actually sitting down to begin drafting my complaint when the Sheriff’s Officers arrived to serve this initial writ...

 

It has a few glaring errors as far as I can see.

 

1) In the condescendence it claims that I entered into a Consumer Credit Agreement with them in August 2011 (“The Agreement”)

– In fact this date corresponds with when they refunded the PPI.

I did NOT sign an agreement at that time!

 

2) It lays claim to a “loan sum” advanced to me in August 2011

– and states a period over which that sum was to be repaid.

.. No sum was advanced to me and no payment schedule intimated to me in August 2011...

 

3) It claims that “The Agreement” was signed by me in August 2005 and properly executed in terms of the CCA 1974... THAT agreement – which surely cannot be the same thing as something entered into in August 2011 – is under dispute under S78!

 

Naturally my first thought is to defend the action

– but the £80 to lodge an NID will not be found easily!

And that's assuming this is wise...

 

Despite many ‘phone calls I’ve not been able to access anything useful by means of advice from the various support agencies

– CAB is almost non-existent in my corner of Scotland..

.. It’ll be mid-week before I can even talk to anyone...

 

MEANTIME I would seriously appreciate any help, advice, experiences, guidance...

Obviously the stress of this now hanging over my head is NOT helping my health!

 

Regards and TIA

G

Edited by dx100uk
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Hi

 

What type of cause is it?

 

If it were me and i had not received the money then i certainly would defend it but it isn't easy and will take a lot of time and research which can be found and we can point you in the right direction but you have to be prepared to put the work in so ultimatley it is up to you whether you wish to defend it or not.

 

Here are some threads about defending a court action and have useful examples of info you need:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?291077-hfc-bank-Court-Papers

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?195822-M-amp-S-amp-more-court-papers-received%28Scotland%29-**SUCCESS**&highlight=

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?180427-rrfcfan-in-court-with-WF-All-on-again&highlight=

Please contact a member of the site team if you are offered help off the forum for a a paid or no win no fee service.

 

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Hi Ida,

 

I'm unsure - I assume it's an Ordinary Cause as this is what is mentioned on the form 03. However I don't see that on the writ - it is, as I say for a figure between £10K - £15K so I believe that is consistent with ordinary cause...

 

I am unsure if the loan applied for was paid to me in 2005 rather than certain it was not. There was certainly an attempt on my part to cancel. And I have tried to raise this with 'XBANK' and seek clarification - they have simply ignored me.

 

In similar vein I am concerned that they have moved to court action whilst the S78 request remains unsatisfied. And whatever the outcome I would wish to raise the matter of their behaviour with the relevant authorities; it has contributed to my illness after all...

 

They also mention service of a default notice - No such thing was received by me.

 

Certainly the statements in condescendence seem contradictory... They say a sum was advanced in 2011 under an agreement signed in 2005???? Surely if they were suing for the sum allegedly advanced in 2005 the action should state exactly that??

 

 

I am also worried about the consequences - couldn't give a hoot about my credit rating as I intend never to borrow a penny again so long as I live. But there is a need to recover and get on with life... And clearly stressors like this are what is preventing this. I have become, for instance somewhat agorophobic... This in itself may make dealing with the matter difficult.

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Forget about the s78 request lack of compliance as this is fruitless.

 

As court action has now been started then you can request the agreement via the court and this will need to be supplied by them - if they have it. along with any supposed default notice.

 

If you read the above link this will give you a guidance of what is involved.

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Thanks Ida,

 

I have read the links

- I'm afraid I drew relatively little from them; but, as you can imagine, I'm not at my best health wise and am struggling to focus.

.. Reeling from the shock in fact.

I may be able to make more sense and better use of them when I eventually calm down.

 

It's proved impossible to access any professional help or information from the CAB or anywhere else. And I feel very alone at the moment.

 

 

I think I need a proper lawyer - but have not the funds to access one.

The CAB in my area are simply not answering phones or email..

. And I have spent literally hours on the phone trying

(during the time they're supposed to be open of course)

And I'm not well enough to go sit in their office; even if I could get to it!

 

So, at this stage I'm on my Tod, trying to work out what to do for the best.

And trying to work out where a possible defence may lie...

What the possible lines of argument are etc....

 

Surely, in respect of the S78 non compliance,

I have good cause to complain to the OFT about the unfair treatment?

Likewise in respect of them failing to engage with what are legitimate complaints and enquiries? -

 

Are there not also provisions that would make it competent for me to raise an action against them in terms of damages? - To my health, the loss of career etc??

 

I do realise these are in themselves completely separate issues from the legal action they have instigated; in that sense irrelevant. But the pursuers have not conducted themselves in a reasonable manner... And that is surely relevant?

 

- Bear in mind that what I am highlighting here is not simply a failure to comply with S78. But a point blank refusal to engage or deal with what are perfectly reasonable and lawful enquiries evidenced by that failure.

 

Surely the courts require the persuers to behave reasonably; and within the guidelines set out by the OFT? - what I am basically getting at here is that their going to court in this way is essentially vexatious rather than "necessary" (as they claim)...

 

Likewise the matter of the seemingly contradictory statements in their claims... They claim I entered into a consumer credit agreement in August 2011 - yet the agreement they supposedly rely on was allegedly signed in September 2005???

 

Now; what I have tried to establish about that 2005 agreement is...

 

a) Whether I actually received the money from them in 2005...

 

b) On what basis - i.e. where is the agreement? what does it say? - was that money advanced in 2005?

 

They are claiming in the court papers that I entered into an agreement in 2011, they claim an advance was made in 2011 (Neither of which is actually the case)... And that was to be repaid over a specific period of time...

 

- But seem to be relying on the original agreement (if it exists) signed in 2005 for a different amount of money on a different basis...

 

Now; August 2011 is when the PPI was refunded. And I see two possible legitimate scenarios... Assuming for a moment their claim from 2005 is competent.... (which of course ain't necessarily so)

 

1) They make the refund (as they did) and the balance of the account stands unaffected to be collected under the core terms of the old agreement... There is NO new agreement...

 

2) They make a refund - 'advance' a sum to close off the original account (terminating the original agreement surely?) - and enter into a new agreement with me...

 

It's this second scenario they seem to be 'painting'. They are claiming an amount was advanced to be paid over a specific length of time from August 2011... And that I entered into an agreement with them in that respect... Surely, for that to happen, there would need to be a new properly executed document and it is not competent to try and rely on the old agreement?

 

I can assure all and sundry that I agreed to nothing but a PPI refund in August 2011 as I was in NO position to sign another Consumer Credit Agreement...

 

Many thanks for your help so far Ida - it is apprecited...

 

And I'd welcome all thoughts, suggestion information etc from any source.

 

My main worry is of the consequences - If I defend, as I feel I must, and it goes against me what happens? I HAVE no income and could only ever make essentially token payments. Would I lose the right to ask for time to pay - As things stand at the moment they'd get about £10 a month ;-)

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There are law centers dotted about up here like the Govan Law Center which can help

 

http://www.law.ed.ac.uk/probono/

 

http://www.lsa.org.uk/

 

Maybe if you can see someone face to face might help

 

certinly yes the agreement does change when a ppi has been removed but if no 'new agreement' is completed then it falls back on the old terms in which i think they have tried to cover.

 

in respect of the failed s78 there are not really taken upon any longer due to the changed in the last few years etc and unfortunately your health has no bearing on whether someone can or cannot take further action so wouldn't have any real value in pursuing for damages etc

 

IF you did defend and IF you failed then you would still be able to apply for a time to pay order and the courts would only grant and amount that you can afford.

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I was put on to Govan Law Centre yesterday

- They say they get a lot of referrals from people like national debtline (who referred me) but only deal with enquiries within a fairly tightly defined area of Glasgow.

They couldn't help...

 

Similarly LSA

- I see their website indicates an Edinbugh office

- which would still be many miles away;

but deals only with certain mental health issues apparently;

everything else is in Glasgow;

which could be Mars for all the good that is to me.

 

 

... I've already been in contact with their Glasgow office.

- But they couldn't help unless I could physically get into Glasgow

- just out of the question... I'm a LONG way from Glasgow...

 

All they did was pass me on to CAB direct;

who referred me to my local CAB

- Who aren't answering their phones or email

- and who were the first people I attempted to contact..

. Round and round in circles I went!

 

 

The s78 angle/ill health

- My condition has in part been CAUSED by the unreasonable behaviour of my creditors..

. And it would be on that basis that I'd be lodging any claim for damages if possible;

but as I say, I do recognise that is a completely different issue from the claim itself.

 

The point here being one of principal

- how can it possible be right that a lender can casually ride a coach-and-horses through the OFT guidelines, railroad someone into court without making ANY attempt to resolve perfectly valid concerns and disputes... CAUSE them the loss of their health, job, income career...

 

And the consumer has NO comeback???

 

It's somewhat different I know

- But I'm minded of the Keith Harrison case with Link/MBNA

... TO quote Marc Gander "This is a real message to anyone else who tries the same tricks," ...

 

Well; clearly here is a lender that learned nothing from that case....

 

As I say - the issue of damages is I acknowlege another matter...

What I am suggesting is that, given their unreasonable behaviour

- which is not compliant with the rules they are supposed to operate under

- that action is vexatious rather than necessary, as they claim.

 

I take your point on 'fallback' to the old terms

- but that is not what they are claiming.

 

 

They say I entered an agreement in August '11

- They also claim an advance was made in August 11

- IF a variation to the agreement was made in this manner surely it would need to be explicit rather than implied?

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Blimey!

Couple of initial points

 

 

There is a very high level of complexity in your situation and I would encourage you very strongly to get to speak to someone qualified on a one-to-one basis as soon as possible.

 

 

Who this might be is going to depend on where you stay in Scotland

- for instance to get access to GLC you would really need to live in Glasgow.

 

 

However as Ida says there are several sources of advice

- Law Clinics, Advice Bureau and so on

 

 

I have to slightly disagree with Ida on one point

- and that concerns s78.

 

 

It is perfectly right to say that since the Carey case lenders can (and do) send out any old crap in response to a S78 application and that will fulfil their responsibility,

 

 

so cases using s78 are much less common than when they had to produce a copy of YOUR original agreement.

 

 

However to the best of my knowledge they still have to send out SOMETHING (even if its just a computer dump of T&Cs with your name and address at the top) and unless I have misread your post (and if I have I am sorry) Xbank havent sent you anything at all.

 

 

If so then s78(6a) applies, which means until they make this good they cant enforce (might be worth remembering that in relation to Barclays).

 

 

Now the likelihood is that this would only be a temporary delay for them,

as they would send out some load of old rubbish

and say "this is what your agreement was like" and then enforcement would be back on.

 

 

But at least it would buy you a bit of time.

Moreover the dates are interesting.

 

 

On the one hand they suggest that you signed in 2005, but entered into the agreement in 2011.

 

 

Now leaving aside that I am struggling to imagine any competent lawyer bringing a case based on this kind of nonsense,

 

 

there is a potentially important issue here

- which Consumer Credit Act applies?

 

 

The original 1974 version,

which would offer you the protection of s127(3) if their agreement doesnt meet the signing requirements?

 

 

Or is it the 2006 version (which only covers agreements since April 2007) which doesnt offer this protection?

 

 

Are they trying to have cake (the agreement being dates 2005 so the 1974 Act applies - good for you) and eat it too (but the agreement wasnt entered into till 2011 so the 2006 Act applies)? Just a thought - they might after all just be confused!

 

 

However, there is another point about the agreement.

I take on board all that you say about when it might (or might not) have been signed, the divergence of dates etc, but it does seem to me that there are two points in your favour, at least potentially

 

in bringing their action

 

 

Xbank will have had to aver (guarantee) that there is an agreement,

and as Ida says you can require them to produce this in court.

 

 

That they have sent you nothing (as I read this) kind of suggests to me that either they dont have it, or its not going to be enforceable.

 

 

What lenders hope for is that the debtor will simply roll over and not challenge the claim, so they get their court order without any ado (and without actually having to produce the agreement, which might/might not exist, and even if it does might not be enforceable).

 

 

re whether or not you got the money,

its important to remember that in bringing this action the burden of proof is on them.

 

 

This means,

I would suggest,

that they have to show that the money was paid into some account with a name, sort code etc (unless they are going to suggest that you went to the bank and got it in tenners!).

 

 

At the very least they would have had to issue a cheque to you, and there would have to be evidence of this - cheque number, when presented, where etc.

 

 

In short, put them on notice that you want evidence that this money was actually paid to you

- that it went into such and such an account and if its with them get them to produce the statement showing the money hitting the account.

 

 

If it wasnt with them then they must have records to show it was sent and where

- make them produce this.

 

 

If a cheque then again they will have records

- make them produce them,

 

 

In response I have no doubt their reply will include the word "nonsense",

but if you have evidence from that time of difficulty in getting the funds from them then I think its a legitimate question to put to them.

 

 

Remember that the onus isnt on you to prove you didnt get the money

(something you would find very difficult to do as they will always come back with

"ah but she must have another account somewhere") but on them to show that you did

- more often than not this isnt an issue, but it certainly is here.

 

 

They have records

- make them dig them out if they want their money.

 

 

Allied to that is the discrepancy in dates.

In the absence of more there does seem to be something funny going on here.

 

 

Couple of other things here,

since you say you live in Scotland,

and assuming you bank with one of the four main High Street banks,

then we (ie taxpayers) effectively "own" three of them

- Bank of Scotland (now part of Lloyds); RBS and Lloyds TSB.

 

 

Why not put all this to your MP, and see if they can offer advice and/or help.

Lay your personal problems on thick with them.

 

Also, I think you are being far too reasonable with some of your creditors.

As Ida knows, I am very firmly of the view that if there is a group of businesses that will do you over on the merest legal technicality its anyone in the "financial services" industry (banks, insurance etc) -

 

 

therefore if the opportunity presents to do the same to them

(remember the old school motto - do unto others as they would do unto you, but do it first and do it harder) then my own view is you should take it.

 

 

If they cant come up with the goods to get their money back then tough on them.

And in your case where one account is "phantom" (or made up - isnt that fraud?),

 

 

one a magazine application which is more likely to have your horoscope on the other side than the T&Cs which should be there,

 

 

and another which is clearly a poor forgery (see comment re fraud above)

 

 

I really think they deserve nought and certainly not £25

a week (for two), you can clearly ill afford (£200 a month - gee whiz!)

 

What to do?

 

Well as Ida has pointed out your health wont be a major consideration for the Courts. It seems to me that you have two options

 

 

just let the case run,

but focus on the fact that the court will not make an order for more than you can afford.

 

 

However the down side of that is that when you get back on your feet (eg back in employment once your health has recovered) you can bet they will be back looking for more.

 

 

Dont imagine the equity in your home, even if £10k wont be attractive to them. If they cant get all their money they will look to get as much as they can

 

 

you can seek to resist their claim and on the basis of what you have told us,

you have a decent case

- did you get the money,

when was the agreement entered into and the money paid,

was the agreement compliant with the Act

(impossible to say if they havent coughed for a copy, which means also ...),

 

 

they shouldnt be seeking enforcement when they havent come across with an agreement which they have averred exists.

 

 

The downside here is that you lose in which case they would be in the same situation as above

(1) - BUT they might seek to obtain their costs of bringing the action, it being ordinary and not summary cause.

 

 

I think the best bit of advice I can give you,

given your state of health,

is to what you can to get professional advice on this.

 

 

Maybe if you contacted Ida (a PM) with your address (just the area/ town) then she might be able to point you in the direction of advice - she is more likley to know than me.

 

Edited to add that I think when I started this you (GLW) hadnt posted your last message. Just a few points

 

 

you are dead right about GLC

- same thing happened to me and I dont live that far from Glasgow

- did you ask them to suggest who you might contact where/ near where/ as close as possible to where you stay.

 

 

You need to be creative here.

 

 

Re Legal Services Agency, would someone talk to you on the phone?

What about some of the Mental Health Agencies

- tragically far too many cases involve people with mental health issues

- your case will be a long way from the first that has come by them. Worth a try?

 

 

Even if just to get some ideas on who to approach and how,

given what you say about your own health,

the complexity of the case and that,

since you have already been served with papers that there is a limited amount of time,

 

 

re Harrison and Link,

you are quite correct that the judge commented negatively (to put it mildly) about Link's conduct,

but this was minor compared to the fact that Link and MBNA were simply unable to show that Harrison had the t&cs at the point of signing the agreement.

 

 

The key thing was the agreement

- their conduct only made it worse.

 

 

There is also what is referred to on here as "the judge lottery".

I would tentatively suggest that this is a bit less of a problem in Scotland,

but that notwithstanding,

 

 

its clear that Harrison had a sympathetic judge

- there are others quite (literally) the opposite.

 

 

But, in any event,

the fact that a lender has driven anyone to the terrible position you find yourself in,

wont make an account any more/less unenforceable.

 

 

At the margin it MIGHT influence a court, but I dont see it determining anything.

 

 

I certainly would not want to rely on it.

Edited by seriously fed up
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If you can send me your location i can try and find a law centre near you

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My apologies for not responding sooner; I've been unwell for a few days.

 

Thanks for your kindness Ida; have PM'd...

 

Blimey!

Couple of initial points

 

  1. There is a very high level of complexity in your situation and I would encourage you very strongly to get to speak to someone qualified on a one-to-one basis as soon as possible. Who this might be is going to depend on where you stay in Scotland - for instance to get access to GLC you would really need to live in Glasgow. However as Ida says there are several sources of advice - Law Clinics, Advice Bureau and so on

 

 

One of the issues that IS seriously stressing me out is the fact that my local CAB simply does not answer phones or email. - In my case going along to an office located some miles from my home... Sitting there for an inderterminate length of time... Probably only to be told to come back at some point when a lawyer is available... IF I can be seen at all... Well my state of health prevents that...

 

 

Thus, effectively, a disability (albeit a temporary one) prevents me accessing CAB services...

 

 

And of course an elderly person would be in the same boat; an unemployed person might not be able to be able to afford the fares for what might be a wild goose chase etc... It's not good...

 

 

I agree; I need the help of a professional. But need to face the fact that might not be available to me.

 

 

 

  1. I have to slightly disagree with Ida on one point - and that concerns s78. It is perfectly right to say that since the Carey case lenders can (and do) send out any old crap in response to a S78 application and that will fulfil their responsibility, so cases using s78 are much less common than when they had to produce a copy of YOUR original agreement. However to the best of my knowledge they still have to send out SOMETHING (even if its just a computer dump of T&Cs with your name and address at the top) and unless I have misread your post (and if I have I am sorry) Xbank havent sent you anything at all. If so then s78(6a) applies, which means until they make this good they cant enforce (might be worth remembering that in relation to Barclays). Now the likelihood is that this would only be a temporary delay for them, as they would send out some load of old rubbish and say "this is what your agreement was like" and then enforcement would be back on. But at least it would buy you a bit of time. Moreover the dates are interesting.
     
    On the one hand they suggest that you signed in 2005, but entered into the agreement in 2011. Now leaving aside that I am struggling to imagine any competent lawyer bringing a case based on this kind of nonsense, there is a potentially important issue here - which Consumer Credit Act applies? The original 1974 version, which would offer you the protection of s127(3) if their agreement doesnt meet the signing requirements? Or is it the 2006 version (which only covers agreements since April 2007) which doesnt offer this protection? Are they trying to have cake (the agreement being dates 2005 so the 1974 Act applies - good for you) and eat it too (but the agreement wasnt entered into till 2011 so the 2006 Act applies)? Just a thought - they might after all just be confused!

 

 

There are actually two or three issues relating to the agreement... And the action in general as well as the behaviour of XBANK... Let me be clear that IF XBANK can demonstrate to me I owe this money I will, as a matter of principal, make every reasonable effort to pay it back. And that has been the case all along.

 

 

- So this is NOT simply me trying to get a debt written off on some technicality. Which is why, despite one CC Co sending me a clearly FAKED agreement, and the other a mere copy of my application form; I'm trying to pay them actually rather more that I can afford... It's £25 per MONTH they're getting BTW, not per week.

 

 

 

I am however perhaps being too generous with them as you suggest; certainly more generous than I can really afford. And do take your 'do it to them before they do it to you' point. However I see this as eroding a static debt that will have to be addressed eventually in some way, and demonstrating that I am making strenuous efforts to face up to show goodwill.

 

 

Ultimately I will dispute the final amounts. When I am able I will make them a lowered 'full and final' settlement. But I owe them something and am happy to try and mitigate that as best I can. In the case of those who faked the agreement that is a battle for another day. And so long as some form of peace can be brokered that sleeping dog will be allowed to lie; perhaps with one eye open...

 

 

As for XBANK - I'm almost tempted to name them! As they were one of the highest profile names bailed out by the public a year or few back! - Yes; approaching my MP and perhaps also my MSP might be useful.

 

 

Now, in relation to the action being taken against me, I'd appreciate the perspective of anyone who perhaps knows more/has more experience of these things than I... But; it is not the case, that before you take someone to court for anything you need to show that you have taken all reasonable steps to resolve the matter beforehand?

 

 

And that if you don't it can affect the outcome?

 

 

i.e - You could not just sue 'Kebabs Electrical' over your faulty washing machine on the day it flooded your kitchen. - You'd need to TRY and sort things out first; exhaust every reasonable avenue in fact... Even if your case was otherwise sound. If you sued unreasonably, with the primary aim of 'winding up' the defender, the action is vexatious...

 

 

Likewise (as I understand it) if you sued to unreasonably gain some additional advantage that might not otherwise be available. For instance XBANK may well not get an offer that is better than I would have made had they simply complied with my lawful requests (in fact it could be spectacularly worse). But they are seeking interest that could cause the debt to grow rather than ever be paid off...

 

 

- Did I sign an agreement in 2005? Maybe! I just don't know! But you are quite right; XBANK have sent me exactly NOTHING... And the agreement is not all that I am challenging - Signed agreement or not; did I ever get the loan off them at all? I had unearthed two letters I sent to them in 2005 - One refers to a telephone call in relation to their refusing to accept the proof of income sent to me (this, I think , after the fact of the loan being approved). The other, dated ten days later cancelling the agreement and instructing them NOT to proceed with the loan...

 

Copies of these were sent with a covering letter - this was simply ignored.

 

 

When I challenged the PPI - which as I say they treated as a requests to refund without my explicitly applying and certainly without question - I pointed out that I had no copy of the agreement. So they cannot feign unawareness of the fact. They actually acted very reasonably in respect of the PPI - it would have been equally nice IF they had volunteered a copy of the agreement knowing it was absent. Notwithstanding that; it WAS eventually lawfully requested from them... And they failed to meet that request...

 

 

Even if they spirited the agreement up tomorrow - their conduct to date has not been reasonable. Part of the initial writ refers to the necessity of action... And in the same breath the demand for payment. Well; on each occasion they have demanded payment I have pointed out that I am both lawfully disputing the debt and willing to enter into a progressive dialogue...

 

 

 

 

  1. in bringing their action Xbank will have had to aver (guarantee) that there is an agreement, and as Ida says you can require them to produce this in court. That they have sent you nothing (as I read this) kind of suggests to me that either they dont have it, or its not going to be enforceable. What lenders hope for is that the debtor will simply roll over and not challenge the claim, so they get their court order without any ado (and without actually having to produce the agreement, which might/might not exist, and even if it does might not be enforceable).
  2. re whether or not you got the money, its important to remember that in bringing this action the burden of proof is on them. This means, I would suggest, that they have to show that the money was paid into some account with a name, sort code etc.

 

Instinctively, I'm disinclined to 'gamble' on there simply being no agreement for the original amount applied for in 2005. And my opinion is that XBANK are deliberately operating in an oppressive manner; i.e. willfully ignoring legitimate disputes, deliberately withholding information etc...

 

- My view is that this 'cowboy outfit' is simply acting in open contempt of OFT guidelines/regulations because they feel - perhaps being buoyed up with public money, or perhaps via a corporate culture where - they feel above the law...

 

Part and parcel of this culture may be the mechanism of the FOS, which seems to simply endorse and 'rubber stamp' the behaviour of credit providers; however outrageous. My suspicion is that the more 'they' (the finance industry) can erode and make superfluous the mechanisms of consumer protection the easier is becomes to have them disposed with...

 

One pattern that DOES emerge VERY clearly from what I've read, and more recently experienced for myself, is that finance companies will deliver stonewall responses and simply refer the consumer to the FOS knowing full well that organisation - bought and paid for BY the finance industry - tacitly supports and condones abuse of the general public...

 

Against that background - what limit to what they can inflict on people?

 

There is a certain terror in the threat of being taken to court. I feel strongly that in my case XBANK have (to paraphrase another case) indulged in a course of behaviour designed to make my life so difficult I would 'come to heel'. They have done that in defiance of the OFT Guidelines AND in the face of clear information with regard to my mental health - and indeed my physical health.

 

The Harrison Vs Link case, to my mind, merely flags up the matter of bullying oppressive unreasonable and even blatantly dishonest behaviour (such as the fraud involved in forging my signature on that one agreement I mentioned) are all simply routine...

 

In that context, I suspect that XBANK are possibly actually EXPLOITING the fact that I have fallen ill. They (or their solicitors) may also be very aware that there is virtually no access to proper legal advice and support in my area - and similarly that, being in less than robust condition, financially, physically and emotionally , the hope is I will 'cave in' one way or another...

 

just let the case run, but focus on the fact that the court will not make an order for more than you can afford. However the down side of that is that when you get back on your feet (eg back in employment once your health has recovered) you can bet they will be back looking for more. Dont imagine the equity in your home, even if £10k wont be attractive to them. If they cant get all their money they will look to get as much as they can

 

- Personally I don't have £10K of equity, the house is in joint names with someone to whom I am not married. And if we reached the stage where I was bankrupted, with other creditors, XBANK's share would be about £1k...

 

Career wise it's 'game over' - Meaningful employment will be self-employment relying on my basic trade skills. They won't be seeing me earning anything close to what I was before...

 

 

you can seek to resist their claim and on the basis of what you have told us, you have a decent case - did you get the money, when was the agreement entered into and the money paid, was the agreement compliant with the Act (impossible to say if they havent coughed for a copy, which means also ...), they shouldnt be seeking enforcement when they havent come across with an agreement which they have averred exists. The downside here is that you lose in which case they would be in the same situation as above (1) - BUT they might seek to obtain their costs of bringing the action, it being ordinary and not summary cause.

 

No doubt they would - they're seeking costs anyway. And to be honest the thought of acquiring a 'CCJ' (in effect) that imposed a payment I could afford is something I could thole to some degree... It's likely to be less than I would have volunteered!

 

What I would look to resist is them seeking costs given their unreasonable behaviour before going to court. - That, and them gaining an order that awarded them interest. :evil:

 

As their claims stand they are not only wrong but contradictory... I can't 'not challenge' that!

 

It's a separate issue - But I WILL not be doing as I have done with Barclaycard... That is a complaint to the OFT duplicated a few days later by one to the FOS...

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Quick Update on the CAB situation - After FOUR DAYS I got a reply to my initial email telling me to contact a Solicitor and enclosing a list of same.... CAB direct told me to contact my local office and gave the impression they would have legal advice present or at least available on appointment...

 

In my email to CAB I wrote...

 

"I was told to contact XXXXXXX CAB by Citizens Advice Direct as I needed legal advice."

 

"Thank you for your enquiry about the writ for a debt which you have received. I am sorry that you were unable to get a response when you phoned but the office is being moved and has been closed for a short while.

 

In order to defend an ordinary cause action I would advise you to seek the advice of a solicitor. If you act alone and the case goes to court, you could be liable for the other party's costs if you lose. Most solicitors will give an initial, free, diagnostic interview. You should ask when you make an appointment. After this there will be charges and you should discuss these at the initial interview. Eligibility for legal aid can also be calculated at this interview. A list of local solicitors is attached.

 

Upon receiving the writ, you have to respond within a certain period. This period is normally 21 days from the date of citation where the defender lives or carries on business in the European Community so I would advise you to seek legal advice as soon as possible and failing that to respond to the writ within the time limit it gives you."

Their Office has been closed for a short while? As recently as yesterday both lines were simply ringing out. That's four working days solid plus a Saturday morning. Not even an answering machine message or voicemail service??? Nothing on the office's website?

 

They would advice me to "seek the advice of a solicitor"? Really? What part of "I was told to contact Livingston CAB by Citizens Advice Direct as I needed legal advice" was unclear? Yes! I KNOW I need legal advice and asked for it having been directed to them by another arm of their organisation!!!

 

In the words of the great Philosopher Homer - "Doh!"

 

I may as well have simply looked up "Solicitors" in the Yellow Pages - And had Citizens Advice Direct simply told me that I would have no alternative but to source one privately I would not have wasted time and effort trying to contact an office that clearly CANNOT help or advise me!

 

Yes; I know Solicitors do initial interviews free - and after that they start charging BIGTIME! My situation is such that we will have to go without food to some extent to even find the £80 court fee to lodge the NID!

 

Before approaching a commercial solicitor I could have done with some guides to legal aid! - As well as some factsheets or guidance on the legal position; particularly with regard to the vexatious nature of the persuer's actions... I am experienced enough to know that before approaching a Solicitor it's necessary to have 'all one's ducks in a row'

 

And - Yes; I knew that "Upon receiving the writ, you have to respond within a certain period." It actually says that in the court papers - as if I can't read! And even if I hadn't known this - could have looked that up on the internet in five minutes!

 

I realise there are limits - but seriously? Advice at this level is only really relevant to those with serious educational problems, who perhaps can't read or use a telephone directory...

 

As Angry as I am with 'XBANK' I feel that the very obvious lack of worthwhile support for people in a vulnerable position is playing straight into the hands of an obviously corrupt and deeply dishonest finance industry...

 

As I said in my last post - it seems to me that companies like XBANK are happy to ride a coach-and-horses through the rules because they know...

 

1) The FOS is in their pocket and WON'T help uphold the law...

 

2) People are both confused by and unable to defend legal action -

 

3) The harsh reality is that, apart from groups such as this, there is, in many areas no practical help or guidance out there!

 

:shock:

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the situation you are in is very very difficult, and is complicated still further by your personal circumstances.

So with that statement of the blindingly obvious, what should you do

 

 

i would return the court papers indicating that you intend to defend - if nothing else, it gives you some time

 

 

i would make an appointment to see my MP and my MSP.

You are clearly keen not to mention the name of the Bank,

but if its not the one that had a software screwup a week or two ago I will eat my hat.

 

 

Of ALL the banks that is the one with the worst public image of the whole damned lot

(except perhaps Barclays, and we dont own them).

 

 

A letter to the Chief Exec

(you know the pie faced guy who kept apologising about the software problem and saying it was nothing really - it was just money appearing in your account and then disappearing again) from an MP threating to raise the matter in the Commons, or an MSP threatening to raise it at Holyrood (I would be inclined to go for both actually, especially if they are different parties - I might even try the list MSPs as well - more than one letter!) MIGHT just do the trick.

 

 

Emphasise your personal problems, their treatment of you, the legal problems with the stroke they are trying to pull (eg no agreement, confusion about dates etc), and the fact they are likely to get the square root of not much from bringing the action (adding only to your indebtedness and stress).

 

 

Its hard to see how even the best PR guru is going to rescue them from that one.

That should be possible by the time the case would actually be called, so if this has worked then I would certainly be hopeful that they would withdraw the case, and if shamed enough to have offered an apology.

 

 

if that fails, you MIGHT want to think about involving the press (though I can well understand why you might prefer not to - but it does hit a similar spot).

 

 

i am sorry about CAB.

There are two ways of looking at this

- it is an organization substantially staffed by volunteers so that makes what you can expect a bit of a lottery.

 

 

But my own problem with CAB

- however useful they can be (and our local office rescued my disabled wife's DLA when DHSS, as it then was, told her that she was better!

 

 

On the basis of one bit of medical evidence

- that she hadnt been to see the doctor much, but since her condition isnt amenable to treatment, why would she?)

- they can be a bit supine

- they have a tendency to play the game when that's not necessarily in the best interests of the client.

 

 

Consumer protection is a lottery - but of course the real blame should be put on Xbank - I would shred them myself

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XBANK - As it happens it's NOT NatWest or RBS... They recently had a name change to obfuscate their old reputation - But they were among the first to fail in 2007 and were bailed out by the Bank of England...

 

To quote one newspaper...

 

"All over the country, similar scenes were being played out at "XBANK" branches as distraught savers tried to rescue their money from an apparently failing bank. In that one day, an estimated £1billion was withdrawn.

Driven by panic, the first fully fledged run on a British bank for more than a century was under way."

It strikes me that the same dyed-in-the-wool arrogance and downright dishonesty that caused that crisis is alive and well and pulling the strings in the "Asset Management" company that their personal loan business was 'filtered' into...:mad2::mad2::mad2:

 

As I say - they seem to imagine themselves above the law!

 

I am tempted to name and shame them. But fear that in itself might be a vexatious move, as weaken any case in that respect which I may or may not have with them.

 

Likewise with the 'outfit' who FAKED my signature! Of them I can say that they were recently criticised by a judge for their oppressive practices and have a particularly bad reputation -despite being a 'major' name, they're no better than backstreet loan sharks! - however; if I get to the point where the forgery needs to be raised that is a Police matter... So best to keep schtumm rather than make that essentially criminal allegation in public.

 

Frankly, I'd LOVE to name them both!!! But there CAN be legal problems with 'name and shame' tactics - this being an area of the law I DO know something about in a professional context.

 

Involving the press directly it out too for reasons I just can't get into publically - unless there is a producer or reporter out there who will give me a warranted guarantee of anonymity? - It would affect my prospects of ever earning a living again VERY badly indeed.

 

To date all my correspondence (with XBANK) has been addressed to the 'Head of Unsecured Operations' who's 'signature' appears on the bottom of what they've sent me. I am at the moment working on a formal complaint to the OFT and, as a courtesy, will forward a copy to XBANK - this time to their chief executive rather than this other fellow who has been ignoring my previous attempts to communicate...

 

Similarly I shall, as you suggested, raise the issues with my MP and MSP - Not only do we have some fairly blatant disregard for the rules set out by the OFT and by the law; this is surely a blatant abuse of the court system? - One that is made worse by the failings and bias of the FOS.

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i sent you a pm before reading your update on the thread so disregard it.

 

I cannot locate a Law Centre near you the closest is the one in the link above.

 

Also check your home insurance policy as most of them provide allowance for a sols appointment

Please contact a member of the site team if you are offered help off the forum for a a paid or no win no fee service.

 

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Can I just re-inforce the statement made by SFU where he said: "But, in any event, the fact that a lender has driven anyone to the terrible position you find yourself in, wont make an account any more/less unenforceable. At the margin it MIGHT influence a court, but I dont see it determining anything. I certainly would not want to rely on it."

 

I know that that when the initial writ lands on your doormat it can cause period of panic but SFU is absolutely correct. It generally doesn't matter how badly they have behaved with yourself or other people, whether they seem to be riding roughshod over legislation designed to protect the consumer, or whether there's a dispute in place or not, because that isn't likely to be your defence. You need to try to put your feelings aside and focus on the things that now matter on a legal basis - the enforceability of the agreeement, whether there is an agreement, what agreement they are referring to, and what defence you will have if any.

 

I'm not condoning their actions in any way - it's certainly worthy of discussion at another time - but that's not relevant at this time and you need to stop spending time worrying about their bad behaviour. What's important for you now is to concentrate on what's going to get you through this in a legal sense.

 

If it's any consellation, I received an initial writ many many months ago. I panicked. I started to doubt the defence I had worked through in my mind. I thought that their case much be very strong or else they wouldn't take things to court. What I've learned in the last few months is that in Scotland the process is much fairer than it seems to be in England (but can be very expensive). It is drawn out and everyones cards are on the table so there are no surprises in court and you have time to prepare. Starting court action is not taken lightly by companies but it is taken partly as a scare tactic - their clients have unlimited fund to take these cases on. Solicitors rarely have all the information to hand from their client when action is raised, and its not until the adjustments process that they start to look at their case more closely.

 

CC companies are scared - I mean REALLY scared - of sites like this and are terrified of losing...if it looks like they will lose, or not definitely win, then they will generally attempt a settlement with a confidentiality agreement. My own solicitor and advocate haven't appeared in court yet, and neither have the pursuers solicitor, they just seem to agree everything in advance and then instruct a local solicitor to attend court for about 5 minutes to get the agreement of the Sheriff...it's a weird system that seems a bit remote and imprersonal at times, but that shouldn't surprise me because it is supposed to be a dispassionate process.

 

You only have to look for examples in Scottish Case Law for cases centering around the consumer credit act to see how few there are, and to realize that's because most are settled at some point usually with a gagging agreement or else abandoned.

 

In my case the action was sisted, the sist was recalled, then another was put in place, a date for an options hearing was set and now the pursuers have requested another delay for some reason. It can take a long time for the process to work through which will give you time to put things in order, so the chances are you have time.

 

I don't know where you are but I can recommend a solicitor if that would be any use to you - initial consultation is usually free. I've also had contact with an Advocate who specialises in Consumer Law who is an excellent resource to have on your side. If you are going to see them, get everything in order first with all your paperwork and outlines, give them a brief verbal outline, and then let them ask you any questions they need to. Keep it quick and short, don't get involved in irrelevant tangents about the behaviour of banks, the FOS, or anything that isn't relevant. Don't waste their time, or yours, on things that don't matter to your defence.

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That sounds to me like very good advice - but of course you still need to indicate an intention to defend (though these can be adjusted later on). I would still be inclined to use the non-legal route at the same time, since you are putting the pressure of bad publicity on them, as well as, assuming the solicitor is close enough at hand etc to be involved.

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Ida - I am very grateful for your efforts; much appreciated.

 

Can I just re-inforce the statement made by SFU where he said: "But, in any event, the fact that a lender has driven anyone to the terrible position you find yourself in, wont make an account any more/less unenforceable. At the margin it MIGHT influence a court, but I dont see it determining anything. I certainly would not want to rely on it."

 

- I do take your (originally SFU's of course) point. However, as I see it, there are two core issues...

 

1) Whether I actually owe the money or not. A matter XBANK could and should have worked to establish before taking action.

 

2) IF I owe the money whether legal action was actually necessary - And thus whether XBANK are entitled to interest and costs.

 

Bear in mind here that the necessity of action forms part of the pursuer's claim... I have been trying for over a year to establish what XBANK base their claims on. they REFUSE to respond to perfectly reasonable requests... And I beleive this IS relevant.

 

Turning this one on its head slightly - as far as I am aware and was taught at college - one is obliged to act reasonably and within the law BEFORE moving to court action. Otherwise the court can view the action as vexatious and deny any application for costs or interest. - I stand to be corrected on that of course.

 

As far as I know Vexatious litigation is 'legal action which is brought, regardless of its merits, solely to harass or subdue an adversary'.

 

Can it seriously be the case that the Scottish courts have no view on this and are happy to be abused as 'tools of terror'? - And be used casually to support those who act in clear breach of the regulations that are supposed to govern them?

 

If so then the broader implications of my case are troubling... That is of course as an aside to my own case; but still, I feel, important... IS the Scottish court system effectively condoning abuse/disregard of consumer protection laws?

 

IF that is the case then I believe that is unacceptable - One certainly for the MPs and MSPs... Because , as far as I know, the system isn't supposed to operate in that manner. i.e. a court is not supposed to ignore or disregard wanton breaches of lawful regulation.

 

Now, returning to directly relevant matters; the issue of actually owing the money is almost irrelevant... If I do, and as it seems the court will not order me to pay more than I can afford, XBANK are likely to get an order for £5/Month for the next 208 years by my reckoning!

 

Frankly - having had my career effectively terminated in middle age, with the stigma of having suffered a breakdown left in effect unemployable - I have little more left to lose, and cannot imagine what XBANK hope to gain. - Certainly the stigma and effective ending of my 'credit life' is of no consequence.

 

I simply don't HAVE the money they are claiming. And, thanks in part to their actions to date, am unlikely to ever earn the sort of money I did in the past...

 

SO - If the action they are unnecessarily taking is not primarily designed to harass or subdue me (echoes of Harrison) what is it about?

 

On that basis I would hope to resist costs and interest...

 

Bear in mind P.R. that it is looking increasingly likely I will be on my own with this. - A first interview with a solicitor may be free; but the rest won't be! - and, as I have said, the financial situation is so dire that even raising the £80 to file the court papers will mean going without food to some degree...

 

If you are going to see them, get everything in order first with all your paperwork and outlines, give them a brief verbal outline, and then let them ask you any questions they need to. Keep it quick and short, don't get involved in irrelevant tangents about the behaviour of banks, the FOS, or anything that isn't relevant. Don't waste their time, or yours, on things that don't matter to your defence.

 

Quite so - and that is where I am trying to get to. Please don't confuse my comments about the behaviour of the banks in general or the FOS as something I hope to rely on... Those are just general comments and observations. However, as outlined above, I do see the unreasonable behaviour of XBANK as having some potential bearing.

 

At the moment it's difficult to see how I can access a solicitor. And this, as I have suggested, may be something these 'bully boys' are relying on. - It strikes me that XBANK have taken the step of instigating legal action VERY casually indeed. :mad2:

 

A broader question my own case raises... How common is this sort of thing?

 

As SFU suggests - The non-legal route, complaining to the OFT, raising the matter with MSPs/MPs etc... Yes; something I fully intend to to in tandem with resisting the action.

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After reading what I wrote I quickly realized that it's easy to sit back and pontificate when you're not personally involved, and how difficult it can be to focus on what's really important when it seems your world is crashing in around you.

 

That's why things like this site are great, and with the vast experience of people like IdainFife and SFU, they can help to narrow down and focus your efforts on things that matter. I guess it's also why speaking to a solicitor or someone who understands the legislation and some of the arguements can be a help too.

 

When I received my initial writ I called many solicitors, and the attitude of most was "why do you think you don't owe the money?". Few had heard of the CCA 1974, and even fewer had anything more than a cursory knowledge of what it contained. That's why it's important to get third-party advice, but make sure the advice you get is from people who understand what goes on when it comes to debt.

 

- I do take your (originally SFU's of course) point. However, as I see it, there are two core issues...

1) Whether I actually owe the money or not. A matter XBANK could and should have worked to establish before taking action.

2) IF I owe the money whether legal action was actually necessary - And thus whether XBANK are entitled to interest and costs.

My personal opinion is that now that action has been taken, only point 1 is relevant and that's where you should be spending your time deciding on what you want to do next.

 

Bear in mind here that the necessity of action forms part of the pursuer's claim... I have been trying for over a year to establish what XBANK base their claims on. they REFUSE to respond to perfectly reasonable requests... And I beleive this IS relevant.

It shouldn't come as a surprise. Most people involved in the debt industry don't care about the human element. They just want their money and many rely upon the ignorance of the average consumer to play fast and loose with guidelines and legislation.

 

I don't condone it in any way, and I'd like to see more forceful regulation, but you have different things to focus on now. It's not the time for a general rant or discussion of their tactics, immorality, or bad behaviour. You have court action heading your way and you need to deal with the things that will protect you from that. You can leave the crusading for another day unless that will make up a large part of your defence.

Turning this one on its head slightly - as far as I am aware and was taught at college - one is obliged to act reasonably and within the law BEFORE moving to court action. Otherwise the court can view the action as vexatious and deny any application for costs or interest. - I stand to be corrected on that of course.

 

As far as I know Vexatious litigation is 'legal action which is brought, regardless of its merits, solely to harass or subdue an adversary'.

 

Can it seriously be the case that the Scottish courts have no view on this and are happy to be abused as 'tools of terror'? - And be used casually to support those who act in clear breach of the regulations that are supposed to govern them?

 

If so then the broader implications of my case are troubling... That is of course as an aside to my own case; but still, I feel, important... IS the Scottish court system effectively condoning abuse/disregard of consumer protection laws?

No, I personally don't think the Scottish Court system is condoning it, however, just as you have the right to defend yourself anyone has the right to initiate action at any time. The court is not a moral arbitrator, but a court of law and the pursuer has to make their case. Just because someone starts action it doesn't mean they will be succesful or even have a belief they will be succesful. Even if the action is vexatious, can you prove it? Do you know the mind of your pursuers? The Scottish court system allows for a period of adjustments, and that's where the pursuer will need to have better arguements than you. If they can make a case you can't then claim it was vexatious.

 

If I had any criticism of the Scottish court it would be the inability to claim all your expenses even if you win. That seems grossly unfair if the action was potentially vexatious or speculative (in my mind) as it would make companies less likely to take action until they knew the full details. On the other hand, give the amount of court action that goes on in England regarding consumer debts and the relative sparsity of those in Scotland, I'd say the Scottish process is less likely to be succesful with the flimsy evidence that seems to pass as proof in the English court system.

 

IF that is the case then I believe that is unacceptable - One certainly for the MPs and MSPs... Because , as far as I know, the system isn't supposed to operate in that manner. i.e. a court is not supposed to ignore or disregard wanton breaches of lawful regulation.

You're completely correct, but can you prove it? By all means, pursue any avenue you think will help, but please don't get distracted by things that won't help you NOW.

 

Frankly - having had my career effectively terminated in middle age, with the stigma of having suffered a breakdown left in effect unemployable - I have little more left to lose, and cannot imagine what XBANK hope to gain. - Certainly the stigma and effective ending of my 'credit life' is of no consequence.

 

I simply don't HAVE the money they are claiming. And, thanks in part to their actions to date, am unlikely to ever earn the sort of money I did in the past...

 

SO - If the action they are unnecessarily taking is not primarily designed to harass or subdue me (echoes of Harrison) what is it about?

That's the horrible thing about them. They have no interest in the person behind the debt. They want their money, they follow a path, and it seems that the whole process is largely automated and unthinking up to a point.

 

As you've said, there is little chance of them getting what they want even it they did win, but that doesn't stop the process being followed. It's disgusting and it's de-humanising but knowing that isn't going to solve your immediate problem.

 

On that basis I would hope to resist costs and interest...

Without details, I don't think I could say. The only thing I can point out is that unless you defend then you can't avoid them at all. You can make an application pay in installments but from what I understand in Scottish Courts this application to pay isn't likely to be granted if the period of repayment is extensive. I've heard that even 6 months is regarded as too long to repay...I hope I am wrong. Then again, if you have nothing to lose then they have nothing to get, but only you can decide where you stand on this spectrum.

 

the financial situation is so dire that even raising the £80 to file the court papers will mean going without food to some degree...

As IdaInFife suggested, have you checked you home insurance policy for legal cover? It may turn out in the end that you won't be covered, but you might get a lot of mileage out of solicitors acting for the insurance company while they decide whether you are covered or not.

 

There are some very knowledgeable people on this forum. SFU and IdaInFife who will be able help you. My knowledge is much smaller but I can offer a perspective because I'm going through the mill at the moment and I have some first-hand experience of what happens and how it feels. The only thing to remember is that they can offer advice, but they can't make up your mind for you..only you can do that.

 

I've been lucky to be able to spend time with solicitors and an advocate and I've been able to soak up some additional information from them about how the system works and what cc companies and banks try to get away with. I can tell you that their general feeling is that very few institutions have the correct paperwork in place to enforce older agreements. A word I've heard a couple of times in regard to them was "cavalier". They know exactly how these companies operate, and they know what ones have paperwork, what ones destroyed the originals, and although they've defended many cases between them, none of them have ever reached debate or proof...take from that what you will (I couldn't drag the details out of them).

 

At the moment it's difficult to see how I can access a solicitor. And this, as I have suggested, may be something these 'bully boys' are relying on. - It strikes me that XBANK have taken the step of instigating legal action VERY casually indeed. :mad2:

 

A broader question my own case raises... How common is this sort of thing?

It is mad, but it is relatively common. As I said earlier very few cases make it through to proof or debate. The solicitor who started the action will likely have started it without having ANY details about the case. They will go on the word of the bank. If you defend, then the solicitor will start to ask for the paperwork, and during adjustments, if your defence is strong, they will soon realize whether they have a winable case or not. But, at the very beginning, they will know virtually nothing. Since most people don't know what to do (or bury their heads) when they receive the Writ, they will hope for a win by default without ever having to prove they had a case in the first place.

 

As SFU suggests - The non-legal route, complaining to the OFT, raising the matter with MSPs/MPs etc... Yes; something I fully intend to to in tandem with resisting the action.

If that will help them great. Just don't get distracted from the fact that you have an impending court case and you need to decide what to do.

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Once again, I can only emphasise the correctness of PRBrown's very helpful and insightful analysis. I just want to emphasise two things

 

  1. when you say "Whether I actually owe the money or not. A matter XBANK could and should have worked to establish before taking action." - that is a very important issue and one way to think about the case, bearing in mind that its not your responsibility to prove that you do, but their's. Yes they can suggest lending took place (you say you made payments). They can claim you signed an agreement,, but again they will have problems with proof in two respects - first of all when, since they seem remarkably unclear about this. And secondly was the agreement "consummated" (I am sure there is better legal word, but its the best I can do just now) - did they actually give you the money. The fact you are writing at the time complaining about this does at least cast some doubt. And remember here too - though in most cases it would go through on the nod - the onus of proof is on them. "Of course we did" isnt proof - its bluster.
  2. I take PRBRown's point about not being distracted from the legal issues by going down the MP/ MSP/ press route. I think that is correct, BUT with this caveat, if you really cant raise the £80 to present your defence, then you WILL lose - that is an utter certainty. My thinking is that if you can get political support - and I would be taking this up at Chief Exec level, not some wee minion - then, since there is reason to believe that this case is simply bullying/ speculative to get money that might/ might not be owed from someone who is in personal difficulties, given the bad publicity it would engender for little return (its not like you can afford to pay even if it was due) I cant see someone like that taking the risk. It would, though, if possible be better to get a defence in, since it would buy you time to do this. Your return date must be looming. Sorry to put it as blunty as this, but no defence = they win.

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if you really cant raise the £80 to present your defence, then you WILL lose - that is an utter certainty.

 

The £80 WILL be found SFU - I can't "NOT" defend the action, and there is no question of that - I was simply making the point that to find it I shall be forced to go without essentials such as food to some quite significant degree.

 

I point that out merely to highlight that these actions, casual and speculative as they may be, are capable of causing unwarranted hardship in themselves. (I'm sure that's an unnecessary explanation to a degree in the context of this forum; I merely highlight it for the record). And thus are a fairly blunt weapon of intimidation. - and I find it appalling that such tactics are, apparently, being casually used here in Scotland.

 

I have a little under a fortnight to put the NID - I intend to make full use of that time. And, having given the matter some thought and checked a few things, I am willing at this stage to identify the loan sharks behind this outrage as NRAM.

 

That there is (as seems to be emerging from comments) some possibility of a culture where court actions are routinely being raised as weapons, without the proper information, speculatively and (as I feel is my own case) when the lender is clearly breaching OFT guidance and possibly the law... That is a scandal worthy of political intervention and press attention.

 

Clearly, if the Scottish Courts are in any way tacitly condoning that - by failing to address matters such as necessity when considering actions - or proper compliance with the regulations... That is completely unacceptable as it undermines consumer protection legislation.

 

These are not issues in any way unrelated to the claims. - A creditor who is prepared to ride a coach and horses through the law to gain a judgement - As NRAM seem to be - 'steals' an unfair commercial advantage over those who are acting reasonably and within the law... Again completely unacceptable.

 

Now; either the courts are condoning that by inaction or they are not... And if, in Scotland, there are court actions being raised with the sole intent of intimidating debtors then we have a serious problem of endemic abuse of process - I am amazed this has not been taken up by some politician or lawyer! And obviously (to me at least) is the imposition of some 'pre-action requirements' on these Loan Sharks who seem to be swimming our waters unfettered!

 

Since falling ill and upon these hard times, the one thing that astonishes me is the sheer level of raw dishonesty openly used by finance companies one would otherwise have thought 'respectable' - None of the four I am involved with are anything other than 'High Street names'... And by and large they are proving no better than back street Loan sharks!

 

- Broader issues that I need to look beyond I know, but not something I propose to ignore!

 

As for my defence...

 

The agreement dates on the initial writ simply do not make sense. If lending actually took place in 2011 I cannot possibly see how it can be covered by an agreement signed in 2005. As you rightly point out SFU, a different act had come into force by then.

 

All that happened in August '11 was that they refunded PPI.

 

So - to the alleged 2005 agreement. Well clearly their claims about making an advance in 2011 on the basis of that are nonsense. These are obviously things I shall challenge.

 

However - as clearly incompetent as these claims are - I believe they will have the chance to modify them completely once the NID goes in?

 

So the focus returns to whether lending actually took place in 2005 - regardless of any agreement - And, I agree, the burden of proof is absolutely upon them... Always was upon them. And in this respect they simply refuse to respond to reasonable enquiries.

 

I have asked them - as I believe I am lawfully entitled -for evidence of two things:

 

1) A copy of the agreement under S78

 

2) Information to help me confirm that the money (loan) was ever actually paid over; as I have reasonable grounds for suspecting it never was and that the agreement was cancelled.

 

My dispute IS reasonable, and has good grounds.

 

I have directly raised with NRAM the issue that both my recollection and such limited records that I have indicate that Northern Rock (as they were at the time) AFTER the fact of the loan being approved, had some difficulty accepting my proof of income. And eventually, after some 10 days, in frustration I instructed than to cancel the loan.

 

To date NRAM have not supplied a copy of the agreement requested under S78, nor have they made any response to my enquiries seeking to establish IF the money was ever paid to me at all. - and they have had sent to them copies of those letters I wrote back in 2005 and simply, willfully, ignored all that.

 

It was only after I had repeatedly raised these issues with them to no avail that the reduced payment I had been making (up to last October) were finally stopped. - And on December 31st, having given them further opportunities and deadlines to respond to my queries (all ignored of course) that I wrote a letter formally denying liability...

 

This is the redacted text... The Letter from them of December 26th referred to was one asking me to telephone them; despite my previously making it clear I would not enter into a verbal exchange for the sake of my health...

 

I refer to my letters dated XXXXXX XXth and XXth, 2011, and note your failure to respond to them. I also acknowledge your letter of December 26th.

 

As previously advised I have formed the opinion that the loan you allege was made to me was never paid, I certainly have no record of having received monies from you and no record of returning an agreement to you. I take the view that sums collected under the direct debit were therefore paid in error due probably to a mandate being completed at the time of application. And, whilst I have poor recollection of the time, take the view that this was one of several loan applications made but never completed – this particular one being taken to an advanced stage without being finalised.

 

I believe I have given you sufficient time in which to respond to the points raised and can only assume qui tacet consentit in your failure to address or dispute my points.

 

For the avoidance of any doubt you should note that the account is formally disputed with no liability admitted. A formal S78 request was lodged with you on October 24th but the requests therein have not been met. – I consider that there was never any valid agreement and that your claims in respect of these sums are false.

 

For the avoidance of any doubt; I will not be accepting liability for any of the charges or interest levied on this account from its inception, and if possible will be seeking repayment of any sums paid to you.

 

I am open at this stage to a progressive dialogue; and do require a proper and full response to the formal complaints lodged and points made. However - In the event of a partial or ‘stonewall’ response you may take this as my final word on the matter; liability for the sums claimed is wholly denied and no further correspondence will be entered into other than for you to arrange repayment of the sums erroneously paid to you.

NOW - they have since it was first sent had SEVERAL copies of that letter re-sent to them; whenever, in fact I have had any kind of contact from them (typically a standard letter asking me to telephone them). I have always responded referring to them to that letter and appending a further copy.

 

And thus, numerous opportunities to respond to my enquiries have been presented... Which they point blank refuse to do despite my clearly stating "I am open at this stage to a progressive dialogue; and do require a proper and full response to the formal complaints lodged and points made."

 

Stonewalled! Ignored! - And now railroaded into court???

 

Not vexatious??

 

From the section within OFT guidance that defines unfair or improper business practices....

 

"ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make demands for payment without providing clear justification and/or evidence as to why the claims are not valid"
I am yet to sit down and properly digest it. But on initial reading; is it not the case that The Consumer Protection from Unfair Trading Regulations 2008 come in to play and render non-compliance with the above actually unlawful?

 

- Now; let me be very clear that I recognise that if a valid agreement is produced along with proof that I received the money those facts are not changed by any of this. But as much as the court is not any kind of moral arbiter nor is it to be used to pursue an agenda that is unlawful. And I'm bold enough to suggest at this point that clearly is the case here... NRAM are demonstrably trying to circumvent the rules under which they lawfully operate, and may indeed be in breach of statute as far as I can see.

 

NRAM - are fully aware of both my financial position and the state of my health. They have (and I actually have acknowledgement of them receiving) evidence of a near-fatal medical emergency I experienced about this time last year - provoked by stress.

 

Therefore they must know that placing me under further pressure as they have carries the risk of provoking a further, serious medical emergency.

 

Do I need to know the mind of NRAM to prove their actions are vexatious? I don't think so somehow and I'd be interested in learning what precedent exists to the effect that I would have to.

 

As far as I am aware; using a Court of Law to circumvent regulations or the law itself is an abuse of process. NRAM, as professionals are reasonably expected to know this. They should also know that I am, by dint of suffering from what is categorised as a 'Mental Illness' classed as a vulnerable debtor and act accordingly within the regulatory framework.

 

And by dint of that; regardless of the merits of their claims, the objective of this potentially unlawful action can, I think, be demonstrated as to cause me stress in the full knowledge that I might be forced to act against my own interests in order to protect my health.

 

This is relevant I think in respect of item 4. in the initial writ which is headed "Demand for Payment; Necessity of Claim" - Clearly, if they had addressed the lawful dispute of this claim - which goes rather further than the simple lack of compliance with the S78 request...

 

I have been open to a progressive dialogue; THEY are the ones who refuse to communicate, thus I think their claims of "necessity of action" need to be challenged.

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Sorry to have been so long in responding - otherwise preoccupied.

 

First of all I am very glad that you have decided to defend

- not to have done so would be a tragedy, though we can only sympathise with the problems that this will cause you.

 

 

However, and without wanting to come across as lacking sympathy for your plight, can I suggest that you focus less on the unfairness of what your lender has put you through/ is putting you through, and the shortcomings of the Scottish legal system, and instead focus on getting your response to their consdescendence correct and as effectively organized as possible. Dont imagine that if it has flaws that they wont move the Court to have it rejected as incompetent, and thus win by default.

 

What you need to do, at the very least, is to respond to each point in the condescendence

- there will probably be four or five of them.

 

 

You can respond -

admitted (for instance the first one will probably include your name and address - you dont have to quarrel with that - and that the court, being your local court, has jurisdiction);

admitted but with justification (ie "correct but ....") or denied,

 

 

You need to address what they are accusing you of directly.

You might also want to add, if it doesnt come in to your responses to the initial condescendence, some of the things you have told us about - your illness, their harassment of you, your changes in circumstances etc.

 

 

Try to get this as right as you can first time round, though you can make adjustments (and yes, so can they - though too much moving about on facts could throw doubt on their case - well it wasnt really 2011 it was actually 2005 but we have only just found out - doesnt sound good!).

 

However, while your anger is both understandable and righteous, you really need to focus it into developing the very best case against them that you can.

 

 

So get all the supporting evidence that you can muster to present to the Court

- your health records where relevant,

your letters querying whether the loan was actually paid to you,

your letters attempting to negotiate with them.

 

what i think I am trying to say is that your motivation needs to be channeled

- its all about organization

- marshaling the evidence in the most effective and CLEAR way that you possibly can.

 

 

Sheriffs are busy people and wading their way through a whole pile of opaque, vague evidence,

the relevance of which isnt made clear quite quickly and clearly, wont impress them.

 

 

Remember, while there is a burden of proof on them, its up to you to communicate your case clearly to the Sheriff and that needs organization rather than rage,

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Thanks SFU...

 

I'm skilled enough a project manager to know that certain things need to be self contained yet run in parallel... :-)

 

Don't worry - my response to the action will be a different thing to the issues I raise with the OFT and the politicians... They will just happen on a 'synchronous' basis...

 

I'd appreciate any practical help going with the process though...

 

For instance what has to accompany the NID... Does my response to the initial writ need to go in with it? I have conflicting information on this.

 

How to structure the response to the initial writ. What the timescales are etc etc...

 

Essentially there are four condescendences - The first 1.1 1.2 are about jurisdiction.

 

2.1 - Claims I entered an agreement in August '11 - I simply didn't!

 

2.2 - Claims wrongly that there was a loan sum advanced in August '11 There wasn't!

 

2.3 Refers to the agreement in 2005 which was for a different amount and in any case - as far as I can see - can't possibly relate to something I allegedly agreed to in 2011!!

 

3- Default...

 

3.1 Alleges I failed to maintain payments under the agreement (what agreement?). And that a default notice was served - which wasn't!

 

3.2 In terms of the Agreement (what agreement?) and the Act the pursuer is entitled to demand £XXXX

 

4. Demand for Payment; Necessity of Action

 

Refers to a demand for payment - to which I responded referring them back to my letter of December 31st denying the claim and pointing out the S78 request...

 

Necessity of Action? Even if I owe the money - which I have repeatedly asked them to prove - Not if they had responded to my reasonable requests for information!

 

 

The complaint to the OFT will go in late this week/early next. That will be copied with covering letters to my MP, MSP, - and if anyone would care to suggest any other Politicians that might pick it up... The gameplan is to get the OFT complaint in first, copy it to the CEO at NRAM and to the politicians...

 

As Tommy Cooper would say - cat -pigeons -pigeons -cat! Might help, might not... Worth a go.

 

Structuring the timeline, specific breaches and cross referencing documentation for the OFT complaint will make it easier to transpose that material for the court... One job; several uses.

 

Curiously - As I collate thus crud - it becomes more apparent just how off the wall they've been. At one point they SEEM to cryptically suggest that THEY owe ME (a small amount of) money and offer to pay it back!! This was an apparent response to my sending them copies of my letters from October '05 cancelling the loan...

 

I respond to that by asking them for clarification and they send me a duplicate of what they had sent me before - next thing I know I'm getting demands for payment again!! :roll: ~ A big part of this is their apparent reliance on 'standard' letters; there are actually very few 'real' responses to anything.

I'm 'taking the view' that it's deliberate harassment - couldn't possibly be that they're just completely incompetent I'm sure :-)

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Re the writ,

the closest I have ever got to actually being in court so far (touches wood) was when M&S tried their luck (unsuccessfully). You can find this here -

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?199747-HELP-Court-Papers-from-M-amp-S/page2&highlight=marks+spencer

 

 

- on page 2 there is my reply to their condescendence

- you might find it useful as an example

 

For 1 you could pretty much copy this

- I think its pretty standard

- the quoad ultra bit means anything else we dont know we arent admitting.

 

You will need to reply to each section in 2 and 3 and present what you have written up here

(+ anything else) in as coherent way as you can

(their incoherence being one of your biggest problems.

 

2.1 denied - require them to produce the document showing that you did.

The burden of proof is on them - in fact they will have averred that it exists.

 

2.2 denied - require them to produce the evidence that they did advance funds

- for instance where did it go?

Was it paid to an account?

If it was it should be easy to show (or not) that the funds reached the account.

 

2.3 - admitted but with justification that you never got the funds

- produce your letters of complaint from that time.

Also same as above - which account were these funds paid into

 

3.1 admitted but with justification that there was no agreement and no funds were advanced and therefore no payments could be expected

- plus your point about the lack of a default notice

- you might also want to work in here that they never responded to your s78 request.

 

3.2 denied as there was no agreement signed by you and , no funds advanced

 

4 The PURSUERS, by virtue of there being no agreement, no funds having been advanced, no default notice issued, no response to a s78 request, are not entitled under the Consumer Credit Act 1974 Section (87) to demand payment of the balance and the DEFENDER craves that the application be dismissed.

 

One other thing concerns procedure

- see post by Monty at 17th May on my M&S thread

- this will be useful to you.

 

 

If you can get hold of a copy have a look at Civil Procedure and Practice by Charles Hennessy

- terribly boring, but very useful at times like this.

 

Complaint to OFT certainly, and i hope you will follow up with your MP and MSP. Neither, though will help you in court sadly.

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Couple of quick questions... With due thanks to SFU....

 

1) Can anyone confirm (or correct the misapprehension) the process is that I file the NID, and then have a further 21 days to file defences????

 

2)

2.3 - admitted but with justification that you never got the funds - produce your letters of complaint from that time. Also same as above - which account were these funds paid into
Hmmm.... At 2.1 in the condescendence the Pursuers state :

 

2.1 On XX August 2011, the Persuer entered into a consumer Credit Agreement with the Defender in respect of an unsecured loan ("the Agreement")

 

2.2 The loan sum was £XXXX. The Loan sum was advanced by the Persuers to the Defender on XX August 2011. Repayment of the loan was to be made by monthly instalment over a period of 50 months

 

Surely this statement defines exactly what is meant by the term "the Agreement"? And that would have to be something that set out the exact terms they claim as laid out elsewhere in the condescendence?

 

Now; Surely, having clearly defined the term "the Agreement" - whatever was signed or was not signed in 2005 is a different thing, relating to a different amount of money, would have been signed when a different statute was in place - and is altogether NOT what they refer to earlier in condescendence???

 

Therefore - Whilst I may well with to conceded that I may have signed 'an agreement' for some other amount in the past - and wish to explain that other agreement is in serious dispute etc etc... I'm not at all sure I would want to concede that "the agreement" was signed...:|

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1. yes

 

 

2.sorry must have missed that

- if they are saying that you signed an agreement,

when you didnt

then clearly you need to deny that.

 

 

So "denied with explanation that ....",

which will force them to produce the agreement at some point in the process of adjustments.

 

 

Its at this point that they may realise they are making a rod for their own backs and switch to the 2005 agreement that has been referred to.

 

 

That though is going to point to a considerable level of confusion on their part about their own case,

so you should be able to use that against them -

 

 

if they got it wrong the first time what confidence can we have they have got it straight now.

 

 

Did you ever read Harrison v Link

- there are cognate issues there as Link started off with one agreement then switched to another one.

 

 

If you read the judgement its clear the judge is less than impressed.

 

 

Its also a case that involves allegations of bullying by the lender.

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