Thread: Credit agreements in Scotland from 1st Decemeber 2009

Thanks to cerberusalert for revealing this

Scottish court change ‘threatens recovery’ - 02/10/2009


Creditors and debt buyers will be unable to recover debts through the Scottish courts unless they have copies of regulated agreements, under new rules.

Experts are calling on those who use the Scottish courts to send representation to the Sheriff Court Rules Council, which initiated the change to the court rules. The change is due to be implemented on 1 December. From then, court actions regulated by the Consumer Credit Act 1974 will require a copy of the regulated agreement which will have to be attached to the writ or summons.

The council’s secretariat has told solicitors that individual sheriffs will take their own view as to what constitutes a copy and they may require a photocopy of the agreement rather than a ‘reconstituted copy’. Stephan Cowan, managing partner of Yuill & Kyle Solicitors, said this is surprising as creditors are usually required to provide ‘true copies’. "A true copy does not mean an exact copy and there is case law to support this," he said.

The impact on lenders and debt purchasers could be significant as many financial institutions are only able to provide a ‘reconstituted copy’ – repopulating a template from computer records. They are bound to litigate in the debtor’s domicile and so would not be able to recover those debts.

The stance also differs from that taken by the Office of Fair Trading, which states that creditors must provide ‘true copies’ under sections 77 and 78 of the Consumer Credit Act and accepts reconstituted copies as valid.

The Rules Council is meeting on 6 November and has said it is willing to receive representations from creditors and industry groups concerned about the change. It can be contacted at smccourt@scotcourts.gov.u k (0131 221 6766) or by letter at: The Secretary, Sheriff Court Rules Council, Hayweight House, 23 Lauriston Street, Edinburgh EH3 9DQ.

Credit Today online

my thoughts exactly

ida x

I had court papers from M&S earlier this year. About month before the first hearing on their initiative a motion of absolvitor was agreed. But in their initial application they said they would produce and rely on the original application form for a Chargecard from 1984. In addition to the complication that this form was to support transfer to an &more card, I had an inkling that they didnt have the form, so part of my defence was that the form would be non-compliant (no credit limit etc), so even if they had the form i would still have something to argue.
Their withdrawal was, of course, without admission of liability and on a purely commercial basis. But if they didnt have the papers, I had called their bluff. Now I am not making out that I am some kind of far-sighted hero. My point is that if lenders are putting cases into the court system, trying to bluff debtors into paying (basically using court papers as a frightener) and then withdrawing when their bluff is called (OK, Marks and Spencer Money, make my day punk!), I would have thought there is a reasonable hypothesis that the court system is pretty edit off with this and its one thing to edit off the creditor, but not the Sheriff (or his Clerk!). If this is the situation, then, for lenders, the damage might well be done.
I think what is particuarly interesting is whether the new regulations and/or Sheriffs take a strong view of "copy of a regulated agreement" - "no signature, or prescribed terms Mr Lender. Get lost". And if lenders dont have a signed agreement with the prescribed terms within the signature document, then basically- because of s127 - its a waste of time for everyone, including the court, and arguably to use the court system like this (as M&S might have done in my case), is simply an abuse of process and it is time it was stopped.

nothing seems to have been updated so far but as it just started yesterday it could spread over a few days

ida x

thanks LAD

ida x

Any action would not be based on s77/78 of the Consumer Credit Act. So why would the type of copy be what it is acceptable to provide under that section? Surely it should be a copy taken from the original agreement that would be needed. After all, the original agreement would be needed in a court case.

Section 77/78 is a red herring, in my opinion.

Court rules amended before they come into force

13 Nov 09
New Act of Sederunt deletes procedural requirement in actions under Consumer Credit Act


New procedural rules affecting some actions in the sheriff court have been amended before they come into force.

The Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009 includes provisions amending the four principal sets of sheriff court rules so as to include a requirement that in proceedings relating to a regulated agreement within the meaning of section 189(1) of the Consumer Credit Act 1974, the pursuer requires to lodge a copy of the agreement when presenting the initial writ or summons.
Those provisions were to come into effect on 1 December 2009. Now another Act, the Act of Sederunt (amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009, signed by the Lord President yesterday, amends the first Act with effect from 30 November, so as to remove that requirement.
Instead, the initial writ or statement of claim shall include an averment that such an agreement exists, and details of the agreement.
It is understood that a subcommittee of the Sheriff Court Rules Council is to consider the matter further and make recommendations to the Council.

Too good to be true it seems eh???

An averment??...i.e..an emphatic declaration?...Whats more emphatic than the original agreement??...honestly... swines!!!

Originally Posted by SRR1972

So does this mean that the banks don't have to produce the actual CCA now ? Just refer to the fact they believe it exsists ?

S

Surely they would have to produce a CCA, or else they could
make false claims!!

Am I reading it correctly, that the bank/DCA wouldn't have to initially produce
the agrement in court, they would just have to 'state' (aver) that the agreement exists - but they would eventually have to produce the agreement if I was contesting the case?

HT

If you are taken to court then you can put in a request for docs.

Ida x