RBS/Shoosmiths issues Claim in County Court - Advice please

[wearypanda]

I will not give you the full sob story, but I stopped paying this (and other) CC two years ago because I did not have the funds to maintain payments. I sent an SAR (including a request for the CCA) to RBS back in May 2011 and they responded stating that they 'were unable to obtain a copy of the original application form'. This card goes back a long time, certainly pre 2007. I think it was originally an Access card.

 

I (stupidly) did not put the account into formal dispute.

 

I believe that all the necessary default notices etc. have been served by RBS

 

I recently arrived back from overseas to find a County Court claim (attached) had arrived in the post. This is dated 27th November, so I do not have much time to take action.

 

I would very much appreciate some advice on the best course of action. Should I contest on the basis of there being no agreement? If so, how should I go about that. Am I better off contacting Shoosmiths and agreeing some kind of payment plan with them? Are there other options?

 

Thanks in advance

Edited December 11, 2012 by wearypanda

[AndyOrch]

Hi WP and welcome to CAG.

 

You have 33 days in total ( 5 deemed served so 28 remaining) 14 to Acknowledge Service and state your plea and if defending a further 14 days to submit a defence. Its not for you to place the account in dispute on failure to comply with a CCA request they have done that themselves...hence the claim.I hope you have retained that response as it will become vital in supporting any defence.

 

Regards

 

Andy

[wearypanda]

Thanks Andy. I cannot afford a solicitor for this, so am going to have to handle it myself. Do you think that there is a reasonable chance of a successful defence on the basis of RBS not having a signed application/agreement? I do have the SAR response from RBS by the way.

 

Cheers

 

Andrew

[AndyOrch]

Considering the age and the none compliance the debt should have been wrote off and not you fobbed off.No Agreement no enforcement.

[wearypanda]

So, I should complete the form attached to the County Court claim indicating that I am going to contest the claim. Is my defence simply that there is no CCA? Once I send this form back, what happens then? Sorry but I have not been through this before, so I am nervous that I do not understand the process and what my exposure is.

 

Although this CC account is very old there was activity on it up to about 18 months ago.

 

Thanks

 

Andrew

[AndyOrch]

You can complete it all on line using MCOL (once registered) username and password on the summons.The decision to defend is one that only you can make..to not defend is a CCJ for 6 years.To defend it will allow either to win or lose or they discontinue or even mediation.

Those options only become available if you defend in full.

 

Apart from the lack of CCA have you received a Default Notice? Was there any PPI involved in the agreement?

 

Andy

[wearypanda]

Yes, I am pretty sure that there was a default notice. I have no idea whether there was ever any PPI. It's quite possible that there was at some point. The statement summaries sent in response to the SAR only go back to 2005 and there is no specific mention of PPI in those, but I am not sure whether this would necessarily be separately identified in a statement summary.

 

Andrew

[AndyOrch]

Probably not then considering this was an Access Card.There will be unfair charges if no payment has been made since 2010.You can quantify these from the DSAR

As said its your choice but its not complicated to defend and you certainly don't need a solicitor I suppose ultimately how a CCJ would impact on you is the deciding factor.But they will struggle to enforce without the agreement (Pre 2007) and are praying you don't defend.

 

Your Call

 

Regards

 

Andy

[wearypanda]

Andy, that's great. Thanks so much for your help. I'll let you know how it goes.

 

Andrew

[ims21]

Attachments in post #1 unapproved.

 

Please remove all stuff that can identify you.

[IainHL]

WP, I have flagged up your first post with the attachment since the CCBC claim form is showing both the claim number and the online password for you to use. This means someone with malicious intent could, for instance, go and admit to the debt on your behalf, leaving you stitched up with a CCJ.

 

I have to say that as a Particulars of Claim it is very terse to say the least. It merely talks about "an account", with no mention of "an agreement". As far as I know this means you wouldn't be able to use a CPR Part 31.14 request to the Solicitors to see the documents, since none have been specified in the PoC. I guess this means you would have to use a CPR Part 18 request. However I will leave that to Andy as I know he is far more clued up on that sort of thing than me.

Edited December 12, 2012 by IainHL
Particulars of Claim, not Statement

[wearypanda]

I have changed the attachment to obscure the login information. Thanks for spotting that.

 

I did wonder abou the statement of claim not mentioning an agreement. The examples I have seen posted here have mentioned an agreement so far as I recall.

 

I would appreciate any guidance on this specific issue. Do I have to make a CPR request for the CCA before I am able to contest/defend the claim?

 

Cheers

[AndyOrch]

You still have the claim number on and the amounts..I have unapproved.

 

Andy

[wearypanda]

Oh, OK. Have obscured that info too. Hope it's alright now.

[Bandit127]

This may be a naiive post but I believe your defence is risky if you go on non compliance with a S.77-79 request. They can remedy this if they turn up a reconstruction at any point (per Carey vs HSBC Bank).

 

If the debt pre-dates 6th April 2007 then you can require them to produce the original agreement per S.127. They will then need the original.

 

Your defence should be constructed accordingly.

 

Apologies if I am stating the obvious.

 

EDIT - oops, just seen the POC does not mention an agreement...

[AndyOrch]

I have changed the attachment to obscure the login information. Thanks for spotting that.

 

I did wonder abou the statement of claim not mentioning an agreement. The examples I have seen posted here have mentioned an agreement so far as I recall.

 

I would appreciate any guidance on this specific issue. Do I have to make a CPR request for the CCA before I am able to contest/defend the claim?

 

Cheers

 

It clearly mentions an an account and account number....therefore there must be an agreement.They are already in default so I see little need to request any further documents.

 

Regards

 

Andy

[wearypanda]

I have to submit my defence online today. I intend to use the defence used by Dotty50 in the MKDP/Barclaycard case as this seems most suited to the situation of my case. This seems to me like a straightforward defence, avoiding going into lots of detail. However, I wonder whether I should include in my defence that I issued an SAR in 2011 and RBS did not provide a copy of any CCA stating that they 'were unable to obtain a copy of the original application form'.

 

Can anyone advise me on this please? Thanks. Copy of draft defence pasted below.

 

 

-- - - - - - - - -- - - - - - -- - - -

 

In the Northampton (CCBC) County Court

 

Claim number XXXXXXXX

 

Between

 

RBS = Claimant

 

and

 

Me = Defendant

 

DEFENCE

 

1. I, (name and address) am the defendant in this action and make the following statement as my defence to the claim made by RBS.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The claimants Particulars of Claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the civil procedure rules. (Even allowing for the constraints of the bulk issue system)

 

4. No documents supporting the claim in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon and so the claimant's claim appears without merit.

 

5. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I am at a disadvantage to respond to this claim and to allow me to properly respond to the claim.

 

6. It is denied that I have an agreement with RBS.

 

7. If, which is not admitted, such an agreement exists, the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

8. Without admission that any cause of action is shown by the Claimant it is denied that I am indebted to the Claimant as alleged or at all.

 

AND the Defendant

 

Seeks an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

 

Alternatively if the court decides not to strike out the Claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

 

The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

Statement of Truth

 

I believe that the facts stated in this defence are true.

 

 

Signed

 

Me

 

Defendant