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Hello all...complete newbie here who came across this forum recently having just received court summons from M&S (in my wifes name) chasing full payment of credit card that we have been struggling to pay regularly since my small business started being hammered as a result of current economic climate.I hope some of you guys can help as I intend defending this case and it is all new to me.....anyway here are my current thoughts/reasoning behind this decision.Firstly I will make it clear to all that I am NOT trying to avoid the responsibility of paying my debts...this account was started in 2003 and was initially for an M&S storecard...some years later though they changed it to a mastercard and changed name to &More.Until approximately September/October of last year my/our credit history was exemplary but hit difficult times and from that period until January I paid them less than the minimum monthly amount...last payment made to them was January and they instigated legal proceedings on 6th April.To be honest my first thought was actually just to request time to pay,accept that I will incur a ccj/decree and be done with it however I do know the sum claimed for includes a number of late payment and overlimit charges and the only chance I will get to reduce these is to defend this action....on a similar note if there is any chance whatsoever that I can avoid this ccj/decree being made by challenging the validity of the cca then I am prepared to go for it as I think I have nothing to lose.Another piece of info to throw into the equation is that my house is up for sale and has been for 6 months or so....I do have some equity (assuming I can sell sometime soon) and it was always our intention to sell and pay most if not all credit cards off so buying some time by defending this action is also useful at this point.Anyway today I will complete and return to my local court the form attached to the court papers stating I wish to defend the action (when I called the clerk of court for advice she advised at this stage that is all that is required of me...she said I will then get a letter with a schedule showing when defence should be lodged by.She also seemed surprised that I was not going to use a solicitor....does she not realise how hard up I am right now ???) My first course of action regarding defence is to immediately ask both M&S (and copy their solicitor) for all info regarding this account...I have printed off copy letter from the forum asking for copy of cca(the letter which states request is NOT made pursuant to section 78 of Consumer Credit act as I cannot risk them sending me unsigned copies or application forms etc when I really need all of the proper docs fast) I have given them 14 days to send this to me....is this enough given the fact they are suing me ? Do you think that this is right place to start and/or am I missing anything vital in your opinion at this stage ? All views/opinions welcome on this matter,as I said before its new ground for me but my current financial position (unless things change really soon) suggests I need to know as much as I can as soon as I can regarding what steps I can legally take to protect my family and keep my home !! Thanks all in advance.
Hi Beetle.....welcome to the CAG forums....I'll move this thread to the Scotland Debt forum, where you should hopefully get some more help / advice....if you haven't had a response in a few days please shout...
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In the XXXX Sheriff Court
Claimant -v- (YOUR NAME)
Claim Number: (CLAIM NUMBER)
Dear XXX
REQUEST FOR INFORMATION
I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, I request you to provide me with the information and documents detailed below.
I request that the information should be furnished within fourteen days of the receipt of this letter. If you fail to comply, it may hamper proceedings and result in me filing an unnecessary defence or counter claim.
1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.
2. All records you hold on me relevant to this case, including but not limited to:
a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor
b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.
c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.
d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.
f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998
h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.
i. Copies of statements for the entire duration of the credit agreement.
3. Any other documents you seek to rely on in court.
I must advise you that if the information is not forthcoming, it may delay or frustrate the equitable resolution of this matter and result in unnecessary cost for both parties.
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Thank you so much idainfife for reading my notes and posting...your help is very much appreciated !!! I have advised court of my intention to defend this and I have sent by recorded delivery notice of same to their solicitors.I will send this letter on monday recorded delivery to them...am I right in saying that once I get back this info from them it is then a case of examining the validity of the cca and/or the charges they have made on this account? Do you have any experience of compiling a defence when this becomes necessary ? I must admit I am a little nervous about doing so but I am fully prepared to do whatever it takes.thanks again for your input.
Ps on a footnote I see you got your charges back from ltsb...well done on that one...I am going to challenge them too on this and wondered if when they paid out they caused you hassle by closing your account ?
I personally don't have any 'court' experience but there's plenty on CAG to help
can you post up the POC's from the court? and what type of action is it?
ida x
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On front page heading its a "Form of citation where time to pay directionor time order may be applied for".Page 1 calls it an "Initial Writ" and then the details follow.I will post up full details (need to work out how to do this...I guess I can scan the pages in and attach to my post ?) I will blank out personal info as I am a little wary of what another poster said on this site...we need to be careful of openly discussing too much as we cannot assume the pursuers do not read these posts too !!!Thanks again.Beetle
yes of course and also delete or round you figures off
you can use photobucket to upload your pics/scans to here
how much roughly is the claim for?
did you use PT's cpr cca? if so it's not any use up here
ida x
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I was just about to use PT's cpr cca before I got yours so am using yours (thanks again!!) I will send private message to you re-amount of claim in case "they are watching"!!! and I will post papers with details omitted on the forum.
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Hi Ida...yes on page 1 it refers to the paperwork as "Form of notice to be served on defender in ordinary action where time to pay direction or time order may be applied for"
Is there some significance in it being "ordinary" ?
you would really need a solicitor to defend cause of the way an oridinary actioned is used/worded. and due to the implications and costs if you lost.
Your defense has to be word perfect, a small claim and summary cause a similar and there's room for small erroes etc but not with ordinary causes.
i would strongly suggest you approach a lawyer,
Ida x
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I regret I have no experience of the Scottish system, but know it is quite a bit different to the one down here south of the wall!
But I think you may have a strong case, as M&S almost certainly do not have an Agreement for the Mastercard. All they will have is one for the Store Card...it's not the same thing.
M&S made a bit of a mess of that, and rolled out the Mastercards without seeking new Agreements.
Second line of attack is to see what the Default Notice looks like, as M&S tended to cock them up as well.
Thus, you can look at this from two key stages:
(1) They probably did not make the Agreement at the outset. They may not even have an Agreement, which would be Goodnight Ladies for them.
(2) They probably cocked up the Termination of the Agreement at the end of it.
Either of the above is fatal to their Claim, both together and they'll be paying you money.
The key now is to get copies of both the Agreement and the Default Notice ASAP.
Turn your home upside down too, and see if you can find any paperwork or letters. You may have a copy of the Default Notice already...and may have a copy of the Store Card Agreement too (long shot, but if you file things, you never know).
Although I don't know that you can use CPR in Scotland, but there may be something similar.
A good man to contact may be Monty2007, as he is busy with another Card issue in Scotland, so has a good current knowledge of how things work. His is not an M&S Card, but it's a Card, so the basics are the same.
Thanks BRW your advice is helpful and very much appreciated ! yes I have been discussing things with Monty2007 whose thread I found recently...he has been REALLY helpful so far.....it certainly appears that defending an "ordinary cause" action without legal representation by your side in Scotland is rather daunting but not impossible to do and I am prepared to give it my best shot.....like you I believe no cca for mastercard will be produced....perhaps for the store card ? DN was received in November when account fell into arrears.If it helps I can post it up on here (as soon as I get my scanner working as trying to send some info over to Monty2007 at the moment too!) All the best Beetle
M&S &more court papers received(Scotland) **SUCCESS**
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Originally Posted by donners21
