walton v rbos

[paulwlton]

[paulwlton]

This is the initial letter my MP received from the chief executive, clearly mislead by the RBS legal Dept.

 

Paul

[paulwlton]

This is the reality. The bank are continuing to apply interest on these fictitious accounts, an update on my recent S.A.R - (Subject Access Request) has revealed further interest of £554.00 levied at the end of September.

 

I think it's worth pointing out i have been in contact with another RBS customer who also had their defaulted account balance converted into a Capital and interest variable rate loan in 2000 with the account accruing contractual interest.

[paulwlton]

RBSs latest response to my MPs letter.

 

 

 

Richard Hemsley

Chief Executive, Manufacturing.

 

Thank you for your letter of 5 November 2007 addressed tom my colleague, Mark Fisher. I am replying as Mark has moved to a new role and I have taken on his previous responsibilities. I was sorry to learn that you continue to have concerns regarding the way the bank has dealt with your constituent, Paul Walton. I will comment on the points you raise in the order that they appear in your letter.

 

Firstly, I apologise if the bank has at anytime referred to the credit agreement produced to Mr Walton as the original paperwork. As explained in the letter Mr Walton received from our credit management services department, dated 1 June 2007, the bank supplied a “true copy” of the credit agreement, “true copy” being the term used in the C consumer Credit Act to describe what a bank should produce it the original signed agreement cannot be found.

 

The inclusion of the terms and conditions of the loan with the “true copy” of the credit agreement was not designed to imply that the bank was producing the original paperwork, rather to provide Mr Walton with additional information relating to the loan.

 

You mention in your letter, two capital and interest variable rate loan accounts. If you are referring to the copy credit agreements sent to Mr Walton on 30 April 2007, by CMS, for loans of £369 and £8,849, I confirm that Mr Walton has never signed or agreed to these loans. The loans have never existed. As indicated in the letter sent to Mr Walton by CMS, dated 1 June 2007, the forms were inaccurate and sent in error. The agreements played no part in the County Court Judgment obtained by the bank against Mr Walton and, therefore, can be ignored.

 

The bank is required to reconstruct credit agreements when the original paperwork cannot be found. The letter Mr Walton received from CMS, dated 30 April 2007, should have described the paperwork as a “true copy” of the original credit agreement rather than a copy of the loan agreement. In this respect, CMS gave a full explanation for producing a “true copy” , in their letter to Mr Walton dated 1 June 2007.

 

The loan account, on which the CCJ, was set up in 1998 with Mr Walton’s agreement.. The overdraft was not transferred to a capital and interest, variable rate loan. As explained in the second bullet point of Mr Fisher’s letter of 16th August, the overdraft was incorporated into the loan account along with the balance of an existing outstanding loan. The interest was fixed at £2,977 for the term of the loan, which equates to an annual percentage rate of 11.8%. The figures involved are detailed on the carbon copy of the original agreement, held by Mr Walton.

 

As explained in Mr Fisher’s letter dated 16th August, bullet points 4 and 5, the two accounts in Mr Walton’s name, 00726766 and 00726774, remain open for bookkeeping purposes and have no significance to the CCJ. Statements for the respective accounts were sent to Mr Walton in error and should be ignored.

 

The only statement now relevant to Mr Walton’s debt is in the statement produced by CMS, dated 19 June 2007, which shows that all repayments received from Mr Walton have been placed in reduction of the judgment debt and that no interest has been added to the judgment debt.

 

I apologise that the information originally produced to Mr Walton was incorrect and thank Mr Walton for bringing the inaccuracies to our attention. Once the error was brought to the bank’s attention, Mr Walton was supplied with a statement showing the correct position relating to the judgment debt.

 

I hope that my letter has helped to clarify matters for you.

 

Yours sincerely.

[paulwlton]

Mr Helmsley claims the accounts numbered 00726766 00726774 have no relevance to the CCJ, i beg to differ, the Judgment is in respect of these account numbers.

 

The bank will not like my skeleton argument on the day of the hearing.

[paulwlton]

The bank is required to reconstruct credit agreements when the original paperwork cannot be found.

 

Can anyone point me to the relevant legislation that requires the bank to recreate a lost agreement?

[paulwlton]

It appears my loan accounts are in fact just accounts in my name now.

 

 

As explained in Mr Fisher’s letter dated 16th August, bullet points 4 and 5, the two accounts in Mr Walton’s name, 00726766 and 00726774, remain open for bookkeeping purposes and have no significance to the CCJ. Statements for the respective accounts were sent to Mr Walton in error and should be ignored.

 

This is significantly different to Mr Fisher's letter.

 

Similarly, Mr Walton was mistakenly sent statements of his loan account, which shows interest being applied on a quarterly basis.

[paulwlton]

I now have conclusive proof that the bank transfered my overdraft to a capital and interest variable rate loan for collection purposes.

 

The bank supplied me with further information on both accounts last month in which they admit the default notice regarding my personal loan was incorrect. I've been checking out the banks figures and they all fall into place as i expected.

 

The interest and charges were applied after default.

 

Account No: 11111111

 

13 July 98- balance- £284.42

16 July 98- interest to 30.6.98 - £0.81dr

16 July 98- charge - £19dr

10 August - charge- £40dr

17 August - interest to 2.8.98 - £5.68dr

17 August - charge - £19dr

 

Total £368.91

 

20 Aug 98 a Capital and interest variable rate loan account number 22222222 (note how the account number has changed) amount £368.91 was set up in my name.

 

29 Sept 98 - interest to 14.9.98 - £6.40

1 Oct 98 - interest to 1.10.98 -£2.07

 

Total due at 1 October 1998 £377.38

 

Judgment on account number 22222222 dated 1.Oct.98 £377.38

 

 

Paul

[paulwlton]

The 004 is the code for debt consolidation.

 

[paulwlton]

Paul

 

Just caught the back end of this thread.

 

Without looking through all the post can you just give me an insite to why you are going to Court. Also where does it say in the CCA1974 that they can make an agreement up.

 

HAK

 

To set aside judgment. If you have a read of my draft defence you'll get the idea. Answer to your second question: it doesn't.

 

Paul

[paulwlton]

Could you elaborate on that. Do you mean who was the message from?

[paulwlton]

Hi Paul

 

 

 

Yes

 

Yes, i have omitted the names for obvious reasons.

 

Paul

[paulwlton]

Paul

 

Im getting confused sorry.

 

I ment who was the original sender

 

Sorry HAK, that is something i am not prepared to reveal.

 

Paul

[paulwlton]

Work in progress. I'm intending to give a copy to the claimant and the judge at the hearing.

 

Input welcome.

 

Paul

 

 

 

Skeleton Argument

 

 

 

In the Matter of

Claimant - Royal Bank of Scotland plc

V's

Defendant - Paul Wlton

 

CLAIM NUMBER - MA........

 

1. This argument is intended to elucidate and clarify the issues that appear to the Claimant to be hampering the speedy and equitable resolution of this court case, it is intended to be read in conjunction with the defence I have already submitted.

 

BACKGROUND TO THE CASE

 

 

2. In Nov 1998 the Claimant obtained an undefended County Court Judgment in respect of account numbers EDIT and EDIT which are regulated by the Consumer Credit Act 1974.

 

3. In Dec 2006 the defendant requested information on the said accounts by virtue of sec 77 Consumer Credit Act 1974.

 

 

4. Subsequently, the Claimant provided two documents but these were not true copies of the executed credit agreements relating to the said account numbers (see attached, Exhibits 2 and 3). The Claimant offered these documents as true signed copies but they have never been executed by the Defendant.

 

5.The agreements the claimant forwarded contain a clause allowing interest to be applied to the accounts quarterly before and after judgment, these agreements were strenuously contested by me as not being “true copies” it is noted statements provided for the said accounts show interest being applied.

 

Subsequently it was brought to the claimant's attention that I was in possession of the carbon copy of the original agreement which included significantly different terms and conditions than the ones previously provided by the bank.

 

 

6. It was only after the intervention of Detective Inspector Graham ...... of South Yorkshires Economic Crime Unit that the bank conceded no signed agreements exist.

 

7. It is my belief the agreements the bank forwarded were intended to mislead myself and the court, and by claiming them to be “true copies” of my loan agreements was reason to justify the claimant's right to apply all and further interest to the accounts, furthermore, if it wasn't for the defendant finding the original carbon copy and other relevant documents then the claimant would have been in a position to sue the defendant for all interest accrued on the accounts.

 

 

8.. The defendant further contends that by making this false representation the banks intention was to cause the defendant an economic loss in which case, the bank would fall foul of sec 2 and 4 of the Fraud Act 2006. Further, if the honourable court decides after viewing all evidence submitted by the defendant that an offence may have been committed, then i respectfully ask the court to consider referring this particular matter to the Crown Prosecution Services has i believe it's in the courts power to do so.

 

 

9. For the avoidance of any doubt the defendant has never entered into such agreements with the Claimant, this is admitted now by the Claimant’s Chief Executive in a letter dated 16th Nov 2007 (see attached exhibit 4 and 5). However, the Claimant continues to operate the said accounts in the defendants name but has never shown legal entitlement to do so by way of providing signed executed agreements.

 

 

10. It is my belief that the credit agreements the bank forwarded and any other agreement the Claimant relies on which relate to the said accounts are unexecuted, and that the court should use its powers under section 141 of the consumer credit act to determine the rights of the parties.

 

 

 

 

 

UNEXECUTED CREDIT AGREEMENTS

 

11. I refer in this section to both alleged agreements, exhibits 2 and 3.

 

 

12. It is respectfully submitted that these agreements are improperly executed because they are not in the prescribed format set out in under The Consumer Credit (Agreements) Regulations 1983. Each agreement was made before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

 

13. Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since these documents do not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.

 

 

14. Further, it is the defendant's contention that at all relevant times the credit agreements the claimant is to rely on was unexecuted, and that therefore there is not, and has never been, any lawful obligation to repay monies to the defendant, and that as a consequence any allegations that such an obligation exists are unfounded unless the claimant has strict proof.

 

 

 

Submission to the court

15. In view of this skeleton argument, I respectfully request the Judgment be set aside and the defendant be allowed to file and serve a full defence, in addition, the court to order standard disclosure in respect of the Claimant’s charges and put the Claimant to strict proof of its right to apply all and further interest.

[paulwlton]

I think it's very well put together Paul.

 

Have you considered the effect of introducing these arguments at the hearing without notice? RBS (assuming they turn up) would be very likely to ask for (and get) an adjournment, on the grounds of newly introduced documents, which they will have had no opportunity to study. The judge might anyway take a dim view of it, as he/she will not have had prior sight of your arguments.

 

Would it not be better to send copies to RBS and the court in advance?

 

Els

 

I have already submitted a ring binder containing 30 plus damning documents into court.

 

I will forward my skeleton argument on after i receive the bank's witness statement.

 

Paul

[paulwlton]

I think it's very well put together Paul.

 

Have you considered the effect of introducing these arguments at the hearing without notice? RBS (assuming they turn up) would be very likely to ask for (and get) an adjournment, on the grounds of newly introduced documents, which they will have had no opportunity to study. The judge might anyway take a dim view of it, as he/she will not have had prior sight of your arguments.

 

Would it not be better to send copies to RBS and the court in advance?

 

Els

 

It may be a good idea to forward Cobbetts the documents i have submitted into court.

 

Paul

[paulwlton]

Its great!!!

 

You have clearly thought out the arguement!

 

I think it is very well put together, well argued and I would be really confident going in!

 

I assume you have your bundle ready? Curious as couldn't find in the post whether you have submitted a witness statement of events or in fact as I read your defence, whether you needed to as it was extremely clear. With so many posts being cheeky and going to ask, can I see their claim anywhere?

 

There is a lot to the thread so going to subscribe as like watching the battle! Great arguements!!

 

CJ

 

Thanks for that, yes the bundles ready and i will post the banks original POC when i sort a new printer/scanner out as well as posting the banks forthcoming witness statement.

 

Paul

[paulwlton]

Thanks Sarah.

[paulwlton]

I may include the relevant section in my skelly or make the judge aware of the relevant section at the hearing. Any thoughts?

 

Any practice liable or intended to mislead the debtor – whether as to the origin or authority of any document or as to any other material matter is likely to be regarded as deceitful or oppressive or otherwise unfair or improper within the meaning of section 25(2)(d) of the Consumer Credit Act 1974, whether the practice is unlawful or not.

 

All these issues will be relevant to questions of fitness to hold a licence under the Consumer Credit Act, whether or not they result in prosecution of the individual(s) or company(ies) concerned.

Under section 25(2) of the Consumer Credit Act the fitness of a licensee can be brought into question by the actions of any of its employees, agents or associates, and section 25(3) defines ‘associate’ for these purposes as including a business associate.

[paulwlton]

Thanks guys, i'll have a look later. Off to work now.

 

Paul

[paulwlton]

I have been informed The bank's witness statement will be forwarded in the next few days.

 

I believe sec 7 works in conjunction with sec 2 Fraud Act 2006. What's interesting is one of the definitions for article is: CLAUSE IN A DOCUMENT!

 

7 Making or supplying articles for use in frauds

(1) A person is guilty of an offence if he makes, adapts, supplies or offers to supply

any article—

(a) knowing that it is designed or adapted for use in the course of or in

connection with fraud, or

(b) intending it to be used to commit, or assist in the commission of, fraud.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12

months or to a fine not exceeding the statutory maximum (or to both);

(b) on conviction on indictment, to imprisonment for a term not exceeding

10 years or to a fine (or to both).

(3) Subsection (2)(a) applies in relation to Northern Ireland as if the reference to 12

months were a reference to 6 months.

[paulwlton]

Paul

You may have already brought this up, but are you aware of the misrepresentation act 1967 ?http://www.consumeractiongroup.co.uk/forum/statutes-library/123321-misrepresentation-act-1967-a.html

 

and here's some case law and reference to its use and applicability;

http://www.consumeractiongroup.co.uk/forum/cases-library/122870-case-law-misrepresentation.html

 

PM

 

Yes i am aware of the act but unfortunately it has no relevance to my case.

 

Paul

[paulwlton]

received the banks bundle and witness statement today. I'll post everything later including the judgment from my earlier hearing.

 

Paul

[paulwlton]

[paulwlton]

I believe the witness statement and bundle they have submitted are weak.

 

The bank have submitted the statement below in their bundle, this is the last piece of the jigsaw it clearly shows the figure £8848.30 that was transfered into a capital and interest loan, and the bundle i've submitted proves this.