Absolutely. There's not much point in putting in the effort if you can't be botthered formatting it in the way the court wants. It's all about details, not just the format of your reply, but the efficacy of your arguments, the subtlety and strength of your defence and counter thrust, and the way you conduct yourself. If you can't be bothered with nit-picking detail and crossing all the t's and dotting all the i's then you'll get trampled. This isn't a time for asserting your individuality and cocking-your-snoop at authority. This it the time to buckle down, playing by their rules, and making sure you win. Minor formatting mistakes might be forgiven, but don't underestimate the importance of doing it right. You're out to impress the Sheriff, not annoy him.

Yep, CCA the current owner of the debt - the one who instructed the solicitor - not the OC. If I suggested that, I'm sorry, it wasn't intentional and I did mean the current debt owner. The solicitor should pass it on, but as I said don't rely upon it. If you're relying upon the rate of interest difference, you'll need to be extremely robust in your arguments as it could be tough. Don't forget in your initial response to do things like double-line spacing, your full details etc. There's lots of things on the internet regarding the correct format for your reply to the initial Writ in Scotland so make sure you following them.

They are playing on your naivity and hoping that you don't act within the timeframes and that they get judgement by default. It's probably not helped by using English terms like "Strict Proof" (that doesn't exist in a Sheriff Court and means nothing). You can't use their inaction as a reason for not responding. If you don't have paperwork then say so, if they haven't fullfilled their S78 obligations then say so in your initial defence. They know they can't just magically produce an agreement in court as a fait accompli so don't worry about that - it would have to be listed in their inventory of productions and you would need to have sight of it before court or else they won't be able to rely upon it. You''ve probably sent your CCA request to the wrong people. Y+K are solicitors, not the creditor. Maybe they should have passed it on and I'm sure a Sheriff would take a dim view if they haven't, but best not to assume anything and get it off to the creditor. The Scottish rules are complicated. Have a look here - https://www.scotcourts.gov.uk/rules-and-practice/rules-of-court/sheriff-court---civil-procedure-rules/ordinary-cause-rules - paritcularly the 2 parts of Section 9 as these are the rules you'll be playing by. You can do it yourself, but no-one can really guide you unless you have a basic grasp of the concepts. You'll need to get your head around "Condescendence and Answers" (your arguments), "Pleas in Law" (what you want the court do based on your arguements or law), Inventory of Production (the list of documents each side is relying upon), Rule 22 Notes (asking the Court to ignore parts of the defence), Options Hearings, Proof, and Debate. It's not impossible, but you have to put the effort in yourself and it will be considerable. The good thing is, if they haven't provided you with a reply to your s78 request then it is an absolute (but possibly temporary) defence. The agreement being non-compliant is an absolute defence too but you have to have solid arguements why it is so and be able to defend that position. Don't think for one minute that these issues will stop them. There will be a considerable sunk cost for them already now that a solicitor is involved. It isn't going to cost them that much more to take it further to see how well you can defend your position in the initial stages. They will hoping your lack of knowledge overwhelms you and you give up...don't let them do that to you. I can give you a copy of some skeleton arguements for the first stage but you must not use them without understanding what is being said, why it is being said, and what parts might be relevant for YOU. Just copying it without an attempt at understanding it is going to drop you in hot water. Sometimes it seems the same Pleas are being used twice, but they are slightly different takes on a defence in law. I'm sure I've posted this before, but here you are: COURT REF. NO:- DEFENCES in causa BANK ADDRESS Pursuers Against YOUR ADDRESS Defender ANSWERS TO CONDESCENDENCE The averments relating to the defender and jurisdiction are admitted. Quoad ultra not known and not admitted. It is explained that The Pursuers have not provided any documentation to substantiate their claim as craved. The Defender did have a Credit Card, card number 0123 2345 3456 4567. The account for CREDIT CARD, card number 0123 2345 3456 4567, was in dispute with the Pursuers under s.78(6) of the Consumer Credit Act 1974 as amended. This dispute was the result of a failure by the Pursuers to satisfy a statutory request by the Defender on DATE OF CCA REQUEST under s.78(1) of the aforementioned act asking for details of the properly executed agreement for the CREDIT CARD. Section 78(6) of the Consumer Credit Act 1974 states: “If the creditor under an agreement fails to comply with subsection (1) - (a) he is not entitled, while the default continues, to enforce the agreement”. The Pursuers did supply a photocopy of an application form for a CREDIT CARD account but that application form that did not comply with s.60 or s.61 of the Consumer Credit Act 1974, or satisfy the requirements of s.78(1) of the same Act. The Defender informed to the Pursuers on DATE to inform them of their mistake quoting the relevant statutory instruments, re-iterated the request for the properly executed agreement for the CREDIT CARD, and gave them a further 7 days to respond with the correct information. The letter also informed them if they failed to respond within 7 days the Defender would consider the account to be in dispute and that s.78(6) of the Consumer Credit Act 1974 would be in force. The letter of REMINDER LETTER DATE was not responded to. The agreement is regulated by the Consumer Credit Act 1974 and copy certified account statements would be irrelevant as they do not provide proof of a properly executed and enforceable consumer credit agreement. The Pursuers are called upon to produce the original properly executed agreement for the CREDIT CARD (card number 0123 2345 3456 4567.), and the Terms & Conditions in place at the time of the original execution of the account, the last set of Terms & Conditions in place for the account, and all Terms & Conditions as varied between these two periods. The Pursuers averments are denied except insofar as coinciding herewith. Denied. It is explained that the Pursuers have failed to provide any evidence or documentation of the existence of a properly executed and enforceable credit agreement to substantiate their claim as craved. Denied that the Defender has delayed or refused to make payment. The Defender wrote to the Pursuers on DATE OF REMINDER LETTER making their position clear with reference to the relevant statutory instruments. The Pursuers averments are denied except insofar as coinciding herewith. PLEAS IN LAW The Pursuers, having failed to aver that the agreement exists and is regulated by the Consumer Credit Act 1974, or provide details in their initial writ of the regulated agreement, are in breach of The Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009. Accordingly, the action is incompetent, failing which irrelevant, and the Defender craves that this action should be dismissed. The Pursuers averments are irrelevant et separatim lacking in specification, the action should be dismissed. The Pursuers, having failed to comply with the terms of s.78(1) of the Consumer Credit Act 1974, are not entitled to enforce any agreement themselves by virtue of s.78(6)(a). Accordingly the action should be dismissed. The Pursuers, having failed to comply with the terms of s.60(1)©, s.61(1)(a) and S78 of the Consumer Credit Act 1974 and Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), and being accordingly disentitled to enforce any agreement the action should be dismissed. 5. The Pursuers being disentitled by s.127(3) of the Consumer Credit Act 1974 from enforcing any agreement by the court under s.65(1) in cases where the agreement does not satisfy S61(1)(a), the action should be dismissed. The Pursuers, having failed to demonstrate the steps taken to avoid an unfair relationship between the creditor and debtor as defined by the Consumer Credit Act 2006, are in breach of the unfair relationship terms of this Act. Accordingly the action should be dismissed. The Defender, not being in breach of any properly executed consumer credit agreement should be assoilziedfrom the conclusion of the writ and declared entitled in expenses. Esto which is denied any sum is due, the sum sued for being excessive, decree should not be granted as craved. in respect whereof Signed: Date: DATE OF DEFENCE YOUR NAME AND ADDRESS Defender

Unfortunately, when it's an Ordinary Cause you need to pay a fee to inform the court you will be defending. If it is Ordinary Cause (depends on amount) then they won't just be able to produce documents in court. What will follow is a fairly long process of back-and-forward of condescendence's, answers to condescendence, making sure copies of documents that will be relied upon are given to each side, final docoment lists, probably a couple of stays, possible proof, and then debate. They won't be able to just show up in court with the paperwork, and you will be given an opportunity to study it and respond to it before you end up on court. It could draw out for several months before you need to actually appear. The Scottish process is complicated, it is drawn out, but ultimately it is probably fairer in that all cards are on the table before you get to go to the court.

We own a small business that has ISDN lines installed for a number of years - our account is a business account. We use ISDN for clarity because standard PSTN line quality is extremely poor where we are and we often struggle to hear people on the other end. Our ISDN lines are essential for us. 36 days ago our ISDN lines went down. We've had several dates given to us when work will take place only for the work not to happen. We've been given excuse after excuse, promised things will "be escalated", but nothing makes any difference. We've been "looked after" by their so-called "Distressed Customer Team" for 3 weeks now but they are generally ineffective as they have no real power to make things happen. An email to the Chairman of BT on day 21 asking him to please help get our lines back up was just as useless as it elicited a response but no repair so far. We're told there is a major issue with the fibre between our local exchange and that in a larger town where the ISDN service is ultimately supplied from. We're several miles on the other side of our local exchange from the mail fibre line, yet 1 mile down the road from us - still on "this side" of the exchange - another company with ISDN supplied by BT have lines that are still working. Since our lines went down we haven't had a single order, but last year our turnover increased by over £350,000. Almost all our orders come on the back of customer recommendations, and incoming telephone enquiries from these recommendations are usually converted to customers. Our telephone lines being down are affecting us badly, and on a day-by-day growth comparison it has lost us over £34K of potential additional turnover this year so far. Redirecting our lines to standard telephone lines won't work because of quality issues, and redirecting to mobiles won't work due to poor reception where we are (we're in the countryside). We're pretty much at the end of our rope with this problem. We have no idea where to turn to, or what we can do to fix or problem. We hear lots of platitudes and "we agree this isn't acceptable" but no actual action. Is anyone aware of anything we can do to accelerate the repair, or any action we can take against BT for their appalling service and the affect it is having on our small business?

It's probably also worth pointing out the sentence: "Your contention that the prescribed terms were not included is wholly refuted as you would have received a copy of the prescribed terms and the terms and conditions prior to signing the agreement" which admits that the information they have sent does not include the prescribed terms. OK, maybe not admits, but having to make this sort of statement wouldn't be necessary if what they had sent DID have them. Solicitors will always write with gusto, confidence, and often pomposity, as if everything they say is the absolute truth and that you wouldn't dare challenge their authority. Their letters are designed to shake your confidence. You need to read between the lines in their letters because its often what they don't say that is more revealing than what they do say - especially in relation to direct questions or challenges. I think that having to go off on a tangent like they have suggests (to me anyway) that they know they don't have a strong case, but you must be vigorous and absolute in your defence.

I'm only speculating, but if the offer was made and accepted by letter, wouldn't that be legally binding? I had a similar issue in Scotland where a company accepted my V small offer (to save time and costs) by letter. A few days later they wrote saying there had been a mistake and that their previous letter should have rejected my offer. I went to a solicitor about it as I had my suspicions and he said it was too late for them, and that by accepting my offer it was binding on them. He wrote to them and I haven't heard a peep from them for several years. By now it would be statute barred.

It's only an example of some of the things you might need to say and the format. What you reply depends entirely upon what you have been sent. If you don't understand the example reply above, or the condescendence you have received, you might want to consult a solicitor. It might be best to post what you have received (minus personal details) to get a more accurate feedback.

You need to decide whether to defend or not. If you are going to defend you need to reply to the condescendence. Something like this might act as a holding action and initial reply - the exact words depend upon what you have received.... If it's any conciliation this was the initial defence used within the last 2 years that resulted in a decree of absolvitor i.e. they lost. They're not likely to get away with "true copies" in Scotland and a s78 defence will work. Check the Scottish Courts site for exact formatting. COURT REF. NO:- DEFENCES in causa BANK ADDRESS Pursuers Against YOUR ADDRESS Defender ANSWERS TO CONDESCENDENCE The averments relating to the defender and jurisdiction are admitted. Quoad ultra not known and not admitted. It is explained that The Pursuers have not provided any documentation to substantiate their claim as craved. The Defender did have a Credit Card, card number 0123 2345 3456 4567. The account for CREDIT CARD, card number 0123 2345 3456 4567, was in dispute with the Pursuers under s.78(6) of the Consumer Credit Act 1974 as amended. This dispute was the result of a failure by the Pursuers to satisfy a statutory request by the Defender on DATE OF CCA REQUEST under s.78(1) of the aforementioned act asking for details of the properly executed agreement for the CREDIT CARD. Section 78(6) of the Consumer Credit Act 1974 states: “If the creditor under an agreement fails to comply with subsection (1) - (a) he is not entitled, while the default continues, to enforce the agreement”. The Pursuers did supply a photocopy of an application form for a CREDIT CARD account but that application form that did not comply with s.60 or s.61 of the Consumer Credit Act 1974, or satisfy the requirements of s.78(1) of the same Act. The Defender informed to the Pursuers on DATA to inform them of their mistake quoting the relevant statutory instruments, re-iterated the request for the properly executed agreement for the CREDIT CARD, and gave them a further 7 days to respond with the correct information. The letter also informed them if they failed to respond within 7 days the Defender would consider the account to be in dispute and that s.78(6) of the Consumer Credit Act 1974 would be in force. The letter of REMINDER LETTER DATE was not responded to. The agreement is regulated by the Consumer Credit Act 1974 and copy certified account statements would be irrelevant as they do not provide proof of a properly executed and enforceable consumer credit agreement. The Pursuers are called upon to produce the original properly executed agreement for the CREDIT CARD (card number 0123 2345 3456 4567.), and the Terms & Conditions in place at the time of the original execution of the account, the last set of Terms & Conditions in place for the account, and all Terms & Conditions as varied between these two periods. The Pursuers averments are denied except insofar as coinciding herewith. Denied. It is explained that the Pursuers have failed to provide any evidence or documentation of the existence of a properly executed and enforceable credit agreement to substantiate their claim as craved. Denied that the Defender has delayed or refused to make payment. The Defender wrote to the Pursuers on DATE OF REMINDER LETTER making their position clear with reference to the relevant statutory instruments. The Pursuers averments are denied except insofar as coinciding herewith. PLEAS IN LAW The Pursuers, having failed to aver that the agreement exists and is regulated by the Consumer Credit Act 1974, or provide details in their initial writ of the regulated agreement, are in breach of The Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009. Accordingly, the action is incompetent, failing which irrelevant, and the Defender craves that this action should be dismissed. The Pursuers averments are irrelevant et separatim lacking in specification, the action should be dismissed. The Pursuers, having failed to comply with the terms of s.78(1) of the Consumer Credit Act 1974, are not entitled to enforce any agreement themselves by virtue of s.78(6)(a). Accordingly the action should be dismissed. The Pursuers, having failed to comply with the terms of s.60(1), s.61(1) and s.78 of the Consumer Credit Act 1974 and Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), are not entitled to enforce any agreement themselves except by virtue of s.65(1) of the Consumer Credit Act 1974. Further, s.127(3) of the Consumer Credit Act 1974 prohibits enforcement of any agreement by the court under s.65(1) in cases where the agreement does not satisfy s.61(1)(a). For the avoidance of doubt, Section 11 of Schedule 3 of the Consumer Credit Act 2006 states that s.127(3) of the Consumer Credit Act 1974 still applies for improperly executed agreements made before the commencement of Section 15 of the Consumer Credit Act 2006. Accordingly the action should be dismissed. The Pursuers, having failed to demonstrate the steps taken to avoid an unfair relationship between the creditor and debtor as defined by the Consumer Credit Act 2006, are in breach of the unfair relationship terms of this Act. Accordingly the action should be dismissed. The Defender, not being in breach of any properly executed consumer credit agreement should be assoilzied from the conclusion of the writ and declared entitled in expenses. Esto which is denied any sum is due, the sum sued for being excessive, decree should not be granted as craved. in respect whereof Signed: Date: DATE OF DEFENCE YOUR NAME AND ADDRESS Defender

I agree. It can be tempting to "tweak the tiger's tail" when you appear to be in a good position, but my experience has shown me that keeping a low profile is often the better strategy. You can be strong, have great denials, and cutting replies to letters when prompted, but being pro-active just stirs things up when it would be better if they were left alone - let them do the running. A reminder about their failure to comply with your CCA request is certainly in order, but there's no need to say anything about returning the denial slip. They'll know what it means, and if they are daft enough to continue you have your defence

You're in a position here where you're dealing with someone from England who is applying their experience of English law to their replies. You can use this to your advantage. For instance, we had dealings with an company where the solicitor was based in England and who thought putting "without prejudice" on their letters meant none of the contents of their letters could be put before the court ....little did they understand how different the interpretation is in Scotland compared to England. They wrote extremely freely in their letters and got a shock when we started using the comments in their letters against them when they decided to attempt court action. If you're able to, take advantage of their relative ignorance of the Scottish system which , in my eyes, is a much fairer system with higher burdens of proof (just my opinion). From what maroondevo52 says it seems they are completely ignorant of the Scottish process. It is probably a good thing if you have knowledge that they don't. Good luck in your fight.

If it's Bank of Scotland then I wouldn't be surprised if they can't find your agreement. I have personal experience of BofS credit card with a large balance where they have admitted they don't have/can't find any paperwork in response to an s78 request. Despite being in a similar situation with a number of cards, this is the only company who have ever admitted that they don't have an agreement. The agreement has never been produced to date and I don't believe it ever will. The card was originally a Marbles card and I don't think they ever got the paperwork when they took over that card - probably wasn't an issue for them at that time which I'm sure they regret now. They tried hard for a couple of months to get payment, then sent 2 DCA's after the money, but their existing non-compliance with an s78 request is an absolute defence (until/unless they remedy it). It's been several years since I heard anything and the debt becomes statute barred early next year.

For every CCA request I've made I just get my partner to sign my name on the request letter in her hand. The signature has been nothing like my own but it hasn't stopped anyone sending whatever paperwork they can drag up, and if anything dodgy ever did occur with the signature then it would be easy to show it wasn't mine.

One thing to remember about this process is their solicitors are much better practiced at this than you are and they don't have as much to lose as you. Their paperwork and responses will exude confidence to wear you down mentally so you feel like giving up. Even when their backs are seriously on the ropes and they know they have little chance of winning, their tone won't change. I'm not clear at what stage you're at. Are you still at the period of adjustments or are you much further on? Just because they say it, doesn't make it so. It's up the the Sheriff to decide, and you have a strong point, but whether it would be fatal to their whole case I don't know. I think the ultimate defence for you isn't going to come from the assignation of the debt - if they've got it wrong this time, they could remedy it later - so you haven't got rid of them. You need to focus on what is relevant and what will protect you. Going on about what is fair - or not - doesn't wash with the judges. You didn't receive an assignation - so what? What law can you come up with to show that by not providing you with proper notice they have no right to pursue the case against you now? You need case law and statute to quote and use, not "it's not fair", "how can they?". Harsh, but this is court, and pleading fairness will get you nowhere except joining the list of those with judgements against them. I'd say focus on whether there is an enforceable debt in the first place. From the paperwork they've sent so far (that you've mentioned) I'd say they haven't even begun to prove their case, but you need a strong focus on the law and absolute requirements of CCA 1974 as ammended to put together a robust defence. If you really don't understand the CCA, it's requirements, and the law, then it will be very difficult for you to defend even if you have a strong case. In situations like this you NEED a solicitor on your side - even if it's just to provide some advice while you defend yourself. To defend yourself you need to immerse yourself in everything to do with the CCA and Scottish Law and use the solicitor to guide you. In many ways Scottish Law is much fairer, more strict, and less prone to the sort of nonsense you now read about happening in English Courts reagarding things like reconstituted agreements masquerading as acceptable substitutes for the real thing, or signed applications being agreements, but you have to know how to use and apply it. Sheriffs are unlikely to really or truly understand the intricacies of CCA 1974 and you may need to teach them, but one thing they will absolutely understand is contracts,and if you can frame your defence in terms of contracts and whether one exists or not, you'll be making it easier for the Sheriff to understand your arguments and side with you. Have you tried your home insurance? Do you have legal cover? My insurance company paid for my defence in a credit card dispute regarding whether the CC company had complied with s78. They paid for initial review, review by a consumer specialist Advocate (there's only 1 in Scotland who does this I believe), and for my solicitor throughout the case. My case isn't subject to a gagging order because they didn't ask for it and we won. I think, from what you've said, you have a strong "s78 not complied with" and they haven't done enough to prove that you own them ANY money. This could be chanded in a flash depending upon whether you did receive another document to sign as per post 43. One final thing to think about. MBNA will probably have sold on your debt with a proviso that they don't want to be bothered about it. If this goes to proof you need to have questioned enough of their case where it would require someone from MBNA to attend. The reason for this are: 1. The won't want to send someone all the way up to Inverness 2. If the amount doesn't justify it then they almost definitely won't 3. MBNA will have told the owner of the debt that they are on their own. Put simply, MBNA are unlikely to help the current debt owner at all, so if their case depends upon representatives from MBNA being there or even doing more work than they have already done (e.g. paperwork) then there's a good chance they won't come...scuppering the pursuers case for them. This isn't foolproof but I'd put money on that they will attempt to settle in these circumstances and it's up to you to hold out. Being solicitors, even when they know they have no chance, their nature (with you as a litigant in person) will demand they get something from you....even it it's just a pound. Tell them no.

If it's any consolation I'm aware of a recent MBNA case in Scotland where there was an online application and the arguement was based around whether a tick was sufficient substitute for a signature. Although the outcome is subject to a confidentiality agreement I'm aware of the arguements used in defence and the defendant did seem to be happy. I have some notes here, but please take them as they are. They might be relevant to your case and you may be able to extract some information or argument that might be useful to you, but you'd be best to consult a solicitor. 1. Their right to sue depends on a valid assignation – therefore it must be founded upon. Laws of Scotland confirm this – assignation must take place for the debt to be legally theirs topursue. 2. The assignation MUSTbe intimated – means nothing until intimated to you. 3. Both must exist – why intimate unless assignation took place – yet the document they have produced does not contain the correct address because they didn't know where you were by their own admission 4. They might suggest that that the agreement lodged in process does not matter because the fact that it is anonline agreement means there is no document. The electronic agreement, having been founded upon, must be lodged in process either in its original electronicform or in some suitable alternative. The Pursuers themselves, having lodged aprinted copy in process, have chosen the latter, therefore this form would haveto be complete and true to the original agreement as per 127(3) for thepurposes of enforcement, and also for Rule 21.1 of OCR1993. No agreement = no obligation to pay. Musttherefore be an agreement. 5. A bit speculative and circular as an extension of point 4 - they might end up confusing the document vs the agreement.To be a CCA it must comply with the prescribed terms or it cannot be relied upon. It could be that they might end up saying that what they have lodged is NOT the agreement, because the original agreement was in electronic form. This would have been fine if they had chosen to submit a copy of the agreement inelectronic form eg on cd or dvd. However, since they have chosen to provide a printed copy of the electronic agreement both in response to a Section 78 request, and may also present it to court in their Inventory of Productions, they will have founded upon said document and also referred to it for its terms in their pleadings. Given the shortfalls they can't then turn round and say this document is not the agreement.