walton v rbos

[paulwlton]

I maybe straw cluching here but i've been thinking about another aproach this being having the court order set-aside.

 

The judgement in 1998 includes unlawful charges, at the time of judgement i wasn't to know that the charges were unlawful, i now know different.

 

A basis for a set-aside would be i agreed the amount was correct at the time of judgement but now dispute the amount.

 

I would be totaly prepared for a Limitation fight this time round because i know their defence.

 

Has anyone had a jdgement set-aside on this basis? i seem to recall someone trying.

 

I may be barking up the wrong tree here so all comments welcome.

 

Paul

[paulwlton]

Paul

 

have you read both Kleinwort Benson and DMG Vs inlad revenue.

 

It seems to your argument is dealt with in there, but since it doesnt apply to me directly i havent studied them in that light.

 

They do disucss issues which arise because of a mistake of law.

 

YOur claim would not be about your mistake, but about the courts mistake in that the law as they interpreted at the time was wrong.

 

It was wrong then and wrong now.

 

HOpe that helps.

 

 

Seems to me you may have a case for getting the judgement overturend.

 

GLenn

 

Glenn

I have done some reading i will await the OFTs findings then will seek a set-aside.

[paulwlton]

Mistake of fact is what i'm relying on, the mistake of law doesn't come into my argument.

[paulwlton]

The judge in kleintwort benson didn't change the law he used the declatory theory, stating, that the law is what should have been.

 

I can't see how we can argue mistake of law has a penalty in contract is contrary to common law, this is a settled view of the law.

[paulwlton]

I think i understand what your saying Glenn, the more arguments the better, in the Deutsche morgan Grenfell case it was argued that an unlawfull request should invoke s32(1)©.

The law is still developing and if a claim was to go beyond the small claims then it could get interesting.

[paulwlton]

Hi everyone, sorry to butt in, but i have a case against Nat. West for charges between 1999 and 2002 totally over £7k.

They have quoted all the usual "claim is barred by the operation of the limitation act

1980 and /or the doctrine of latches etc." In their defence. I first complained to nat. west in may 2002 about charges and requested a refund of these fees. I have written confirmation of their refusal to refund charges in june 2002. Would the proof of my complaint in 2002 take me out of the limitations argument ?

 

In my opinion this would bode well for an argument against Laches.

[paulwlton]

Then that would be 6 years prior to that date you first complained.

 

Totally agree you questioned the charges in 2002 you say you have correspondence, in my opinion this is the cause of action, you will be time barred in 2008.

 

Paul.

[paulwlton]

Hi everyone,

The bank and i are at AQ stage in the claim .Both AQ"s have been sent to court. With the new draft order for directions. As i have only just found these letters from the bank.

Should i sit on them until i have to present my court bundle ? Or should i forward copies to the banks solicitors now and blow their doctrine of latches defense out of the water? They are obviously not aware of the existence of my previous complaint in

2002. One of their letters from june 2002 says, "In the circumstances and as the bank has not made a mistake or failed to manage your account properly, it is not appropriate to accede to your request for a refund of these fees, and it is therefore turned aside as unjustified. Neverless, i am happy to offer you my apologies for the inconvenience caused to you by these events, but as i have said i am unable to see the bank has caused or contributed to any of these problems." Concealment of their

charges seems to jump out at you after reading this. Would i also be able to claim back charges 6 years previous to 2002 ? I apologise for taking up so much space on your thread. I will start a thread on this case shortly. This thread has been so useful and extremely interesting , and good luck to you Paul on

whatever cause of action you decide to take.

 

I would add the letters to your court bundle aswell as everything youre relying on, but the descision is up to you.

 

Your claim can extend far beyond 6 years prior to 2002.

 

How far back do yor charges go?

[paulwlton]

Paul.

Charges go back to 1996, but i have not really thought i had much chance with these, and i have taken a bit of a wait and see atitude. Reading all the 6 years+ threads and

following all the debates has certainly encouraged me to file my own claim. I would

dearly love to put a spanner in cobbets works. I am sure you feel the same. I am also wondering if my case can help anyone else in the 6 years + club . By destroying this

doctrine of latches defense they are trying to hide behind. I think i will hold off spilling

the beans at the moment. Just one question Paul . If i did not include the letters in the

court bundle. Could i still produce them in court and scupper them ,like they did to you?

 

Your claim can include all charges back to 96, i think our position is stronger now as we know Cobbetts defence.

 

I wouldnt recommend producing any new Documents at the hearing this may cause an adjournment and you may end up paying costs.

 

I think the way forward is to start a thread and pm with alink persons who you feel could help.

 

Paul

[paulwlton]

I've just attended a court hearing regarding charges that were applied to an account in 1998 the account was then subjected to a court order in 2000.

 

Well the good news is the judge has set-aside the court order allowing a defence to be filed.

 

This bodes well for my intended set-aside against RBS,

 

Paul

[paulwlton]

Nice one Paul, good news. What's your way ahead now?

 

The defence argued that i was considerably out of time making the application and that i agreed to the amount in 2000 so i had no right to question the debt. Reference to the doctrine of estoppel was made.

 

I argued that the defendant had misled the court aswell has myself into believing the contractual provision was valid by stating default charges were to cover costs when in fact they were used to generate material profit and by letting the defendant profit from this mistatement would be unjust. I also argued that i'de made the application in a reasonable time and only found out that the charges were penaltys recently due to media attention and the OFT report. The judge agreed.

 

I also made the judge aware that i had been refunded charges going back 12 years on a mortgage account with a number of charges being for £10.00 in 1996, i made the judge aware that the charges levied in 1998 on this account were substantialy more at £30.00 therefore extremely unreasonable.

 

When the outcome of the OFT report is revealed i will have another crack at my friends the RBS.

 

Paul

[paulwlton]

I've just read now the court order is set-aside the defendant can use the Limitation Act or Latches in their defence. Can anyone verify this.

[paulwlton]

Glenn what is significant about the judges decision is the court order was for £3200 and only £95.00 of that sum was made up default charges.

 

Paul

[paulwlton]

Glenn,

 

absolutly agreed on the point of it being perverse that this may happen, though the reason i mentioned it in the first place is simply because it already has happened. Perverse or not, its there and very likely now, anybody that goes up against the same judge will have to answer the same arguments.

Hopefully this is an isolated incident and is not common ground for most judges, but based on the other sides reasoning i feel its something we should be aware of, and bsically be ready to come back with something that over rules the argument. (ok maybe just...lets look at the facts of the case may indeed do the trick)

I just think its odd that the judge went along with this, as you rightly say, all district judges will avoid an error of judgement like the plague, as an appeal is basically somebody saying the judge is wrong, and they dont like to be wrong so rarely risk doing so.

So why did he do that, did he read into the PoC something that wasnt there ?, was the PoC wording slightly off kilter ? hard to say how or why, but clearly he thought the other side had a vlid legal point, nad thought himself correct to go along with that reasoning.

Me myself will be making allowance of this in my own PoC, with a distinct rebuttle already incorporated just incase.

 

Johnny

 

It seems the error i made was in the POC which stated that in April 2006 i found out that a breach in contract may be unlawful if the cost to remedy the breach was disproportionate to the actual cost to remedy the breach. In a nutshell i was ignorant of the law.

[paulwlton]

Paul,

 

as usual i agree with Glenn, maybe as litigant in person you may not have had the legal knowledge or prowess of a chambers barrister, but surely a minor mistake or slight error or misinterpretation should not be dealt with in such a way !

 

Even has a layperson we are all supposed to know the Law. However, a layperson would not have known that a default charge was unlawful if in an agreement it states: on default we can charge £25.00 to cover our costs.

 

This is the aproach i took for the set-aside. We all should know that a penalty in contract is unlawful we cannot plead we have just found this out, but we can plead we were misled into believing the charges were lawful as the contractual provision clearly states this.

[paulwlton]

Defence suibmitted to Lloyds and the court last week just awaiting a hearing date.

I believe if a term in an agreement has been misrepresented, and i claim this, then the onus would be on Lloyds to prove the term stands up to the reasonable test as per UCTA 1977.

 

Time for another shot at RBS who haven't been playing ball they have failed in their obligation to provide data under a SAR issued 16/12/2006 they have not fully complied with 2 section 77 CCA requests, i think an incorrect statement of account to the tune of £8000 and failure to provide the original agreement will not impress a district judge.

 

My application to set-aside has been submitted to Manchester County Court hopefully it will be transfered to my local court.

 

Paul

[paulwlton]

Interesting development. I wrote to RBS last week and explained by not complying with my section 77 request of the Consumer Credit Act 1974, that they remain in criminal default, and that i intend to make the Judge aware of this.

 

I have received correspondance this morning that they are in receipt of my request and that they intend to comply with it and in the meantime no further recovery action will be taken against me.

 

Paul

[paulwlton]

Hi Paul, I don't know possibly I am alone in thinking this, if so I will step back and shut up:) BUT I am having great difficulty in following your progress with this case. Would it be possible to do a summary post of the entire background to date, because I am entirely confused with all the different hearings, set asides, set-aside CCJ, non-compliance etc. etc. As I said maybe it is just me. Is anyone else confused?

 

Hi bong, i can see why you're confused and maybe i should have started another thread to contest the court order but hopefuly i'll get a result in the very near future.

 

Paul

[paulwlton]

Interesting development. I wrote to RBS last week and explained by not complying with my section 77 request of the Consumer Credit Act 1974, that they remain in criminal default, and that i intend to make the Judge aware of this.

 

I have received correspondance this morning that they are in receipt of my request and that they intend to comply with it and in the meantime no further recovery action will be taken against me.

 

Paul

 

I have to be carefull what i say here but i beleive RBS may be edit they have sent agreements that wre never taken out just so the court order can be enforced.

 

This is the good bit. I have proof.

 

Paul

[paulwlton]

ooooooooooohhhhhhhhhhhh !!!!!!!!

 

will be watching with baited breath !!

 

Can't say too much now Photoman but this as gone far beyond a bank charges claim.

No sleep at all last night, after scanning the agreements again i now know whats happend .

I will contact the relevant authorities today.

 

Paul

[paulwlton]

Hi Paul, I don't know possibly I am alone in thinking this, if so I will step back and shut up:) BUT I am having great difficulty in following your progress with this case. Would it be possible to do a summary post of the entire background to date, because I am entirely confused with all the different hearings, set asides, set-aside CCJ, non-compliance etc. etc. As I said maybe it is just me. Is anyone else confused?

 

Summary post.

 

1. In July 1998 a £9000 fixed rate personal loan and account overdraft balance of £300 was defaulted subsequently a CCJ was obtained by the bank with the court setting payments at £38.00 per month to clear the debt.

 

2. £1450 in charges were applied to the account between 1995 and account default.

 

3. In 2006 i challenged the charges by use of sec32 Limitation Act 1980 with the claim being struck out at the second hearing.

 

4. As the judgment amount in 1998 was incorect due to the level of charges on the account i beleive i should be given the opportunity to defend it.

 

5. I have just been succesful with a set-aside on the same basis against Lloyds.

 

6. I issued my set-aside application against RBS in April 2007 with a hearing on the 10th May.

 

6 At the end of April 2007 i made a CCA 77 request which requires the creditor to supply a statement of account and a true copy of the original loan agreement.

 

This is whare it gets interesting

 

7. The bank complied with my request and i received a letter on the 1st of May 2007. To my utter disbelief embodied in the the court order are 2 Consumer Credit Act Agreements dated 20th August 1998, the first is a variable rate loan of £8849 repayable over 12 months at £787.70 per month the second is also a variable rate loan of £369.00 repayable over 12 months at £32.76 with a statement of account showing £18000.

 

8. A clause in the agreement relates to breaches (if there is any breach of this agreement ) the charges on default. Interest is calculated at the rate of interest on the daily balance outstanding (both before and after any court decree or judgment) and applied in arrears quarterly.

 

9. These are fictitious agreements i have never seen these before i have never signed for a variable rate loan. Why is my name on these agreements? Why would the bank lend me nearly £9000 when they'de served a default notice on me the month before? Between 1998 and the present date how as an overdraft balance and a personal loan agreement changed into the above?.

 

10. Today i've made an application for a months stay on proceedings regarding the set-aside hearing-on advice, and i have an appointment with a solcitor next week. This is beyond my limited skills now.

 

11. It seems the fun is just about to begin because i have all documents from 1998( and i'm talking everything, sorry RBS) . The personal loan agreement and overdraft have been paid since judgment on the same account numbers these fictitious loans are asigned too now.

 

Comments welcome.

 

Paul

[paulwlton]

Paul if these are binding agreements then presumably they would show that you had signed on the dotted line...? I am not following the CCA threads so I'm not up on these things but it seems to me they would need a signature of yours to prove that these are valid agreements?

 

Yes you're right bong they do need my signature,

I've studied the Consumer Credit Act and the SI 1983 regs and i have just had a cheque drop through the letter box today from a sec 85 claim, this will cover my lawyers fee next week.

 

I think i need to find out what address is on the original agreements, i phoned yesterday but they wouldn't tell me.

 

Paul

[paulwlton]

Received today from RBS.

 

 

Thank you for taking the time to contact the bank's Customer Relations Unit regarding the loan agreements that you believe are fraudulent, which has been referred to me from the Financial Ombudsman Service.

 

I know that you are unhappy with our service and i am sorry to learn of your disappointment.

 

To make sure that we fully address all your concerns i have requested background information from the areas involved. I will be in touch with you again, hopefully within the next two weeks, as soon as i have this information to hand.

 

Paul

[paulwlton]

Paul

 

Have you spoken to the police?

 

IT may be that they would be interested there is another thread by sparkie i think and he has involved them over fraud on his account, the police have and are investigating.

 

Just a thought

 

Glenn

 

 

Hi Glenn

 

No not yet but a freind of mine is a chief inspector lol.

 

I received a very important phone call Friday and all options are being considered subsequently i've cancelled the solicitors appointment on Thursday.

 

I received confirmation from Lloyds on Saturday that they've received my defence and now want to settle out of court.

 

Paul

[paulwlton]

Just had a productive hour with South Yorkshire Police and in discusion it was made clear that if the loan agreements are fictitious, then i'm afraid RBS it is a criminal matter, however, they are reluctant to start an investigation just yet as the FOS have started investigatory proceedings.

 

Paul