Wrote to the CRA's and BH advise it is been removed from my file.

Hi, OK i am sure the SB is correct but just keep me straight please. Is this letter OK to use will it have the effect I desire? Thanks again for your help. Black Horse was the original lender, its just the date of the default that is wrong. Complaints Black Horse.pdf

Hi, The background everything went off he rails when my business failed years ago prioritised the mortgage to keep a roof over our heads so ended up unable to pay the car loan. 2010 the door bell went man here to repossess my car, I moved the car to a friends with the aim to avoid repo and privately sell. It did not sell. As the balance was not large I thought I would hold onto the car and pay it off when I got back on my feet. The damage was done no payments and two attempted repo's credit file goosed. Forward a year on in 2011 the car is repo'd. The debt fell off my CRA file but appeared last week with a default date of 2015 with the notice being on my record as Jan 18 the month it appears. How do I handle this I need it removed, I probably received default letters etc at the time. Under the ICO guidelines the repo itself would be when a default would be established, no payments from early 2010 again more than 6 months so under ICO guidelines would be establish the default date in 2010. I have not spoken with or written to lender since 2010 so this is SB. My question is once SB is it always SB? So am I safe to complain to the lender Black Horse and enter correspondence? Is there any guidance/ template on the letter to Black Horse and template for complaining to ICO? What are the timescales to realistic have this addressed as we are looking at a mortgage, historic defaults not worried about but this is the only one on my file and being updated in Jan 18 showing £1500 its going to cause a real problem. Thanks again in advance for your excellent advice and support. Kind regards J

Hi, I was repo'd 4 years ago but have nothing showing on my credit file and can't see anything on the registry trust website for either of my two previous address including my repo'd address. The whole court case dragged on for a couple of years as we tried to sell the property but eventually the court granted the decree for repossession. The mortgage no longer shows in my credit file (previously showed as settled although there was negative equity when bank sold it) having checked on noddle, clearscore and checkmyfile. Where are repossession decrees recorded in Scotland? As there was no money featured in the decree would it even be registered? Am I free of this now or is there another register that lenders could access and see the decree or my old mortgage arrears? Thanks in advance. Been a while since been here used be -1 in user name but can't access the email address I used back then so have resigned up.

The options are narrowing for you, the clause for assignation is present in the signed the agreement. They will in all likelyhood be able to produce an assignation document and so there is no real defence to lodge. I don't know much about trust deed's but I am sure if you have a property with a spouse it is a better option than being sequestrated. Also I am sure that it can take time to setup the trust deed or have it approved so you may be advised to stall the court action while you setup the trust deed as with decree Cabot could sequestrate you and that would scupper the trust plan. If that is the case you oppose the motion lodge a defence around the assignation and that will give you a couple of months to have it setup. There will be more trust deed advice on here I am sure. Its only money, don't make it the focus of your life and worries. The trust deed will take a away the stress, worry and provide certainty to allow you to move on in your life. When the deed is in place and you are in a better place post an update. Good luck.

Had your received the CCA before the last time you were in court? Someone will confirm if the contract terms are enforceable. However if you read through the terms (I don't have time today) to see if there is any mention of assignation, novation if not you have a defence. Have they lodged this with the court as a production? Have they lodged a production and/or have you seen an assignation agreement between themselves and original lender? It is likely they will be able to provide a signed assignation to produced for a proof diet. I think you need to engage the CAB sol's to give you definitive legal advice and comfort when you go to court. Arguing the no term/clause to allow the assignation is not something I would personally take on in an ordinary cause, summary cause yes but the formality of the ordinary cause the sheriff has less discretion.

I think he has a response to the CCA request may just be a letter acknowledging his request as per his post 2nd May 2016 mentioning blinking game with Cabot and not coming up with paperwork not sure they actually have anything enforceable to use in court. Have they sent a copy of your original agreement, signed or unsigned? Does it have the terms and conditions? They need the above to have a claim against you. Have they sent an assignation agreement? If not a solicitor could argue a defence especially if no clause in the original terms. Do you have your own copy of the original agreement with terms? Do you have any correspondence from them notifying you that they have been assigned the debt?

In a summary cause their non compliance with the CCA request probably means nothing so long as they have provided the documentation. A solicitor may be able to argue some mileage on the technicality but for you don't bother. You do have the paperwork from the CCA request as if you don't they have nothing to enforce/ prove their claim. There has been no proof hearing, their motion is removing the sist and starting the process again which would require a proof. This suggests they now have paperwork to proceed or they don't, they aren't going to get by now and start the process in the hope you don't turn up and they get the decree. So as it stands 1) The next hearing is to start the process recalling the sist A) You don't turn up or don't oppose second point they get decree B) You turn up having lodge a motion denying second option as they have provided not proof to the court Sheriff will set the proof diet. C) You add to your motion case to be dismissed as the pursuer copy their layout 1) The Pursuer has failed to comply with the CCA cite the act and clause of the act it is therefore unenforceable in this court 2) The Defender having no previous business or connection the pursuers have at no time been able to establish there is indeed a debt to them having failed to provide you or the court with a novation or assignation 3) (Take you the original contract terms) It is for the pursuer to prove the original terms contract allow for any assignation or novation. A specific clause required in the contract would be required as without such a clause to allow transfer your written permission would be required. 4) The pursuer having been unable to establish a claim in law you crave the court for decree absolivtor together with expense If it were me I would lodge the motion with B & C providing they have not provided you with anything. I would check with the sheriff clerk it will be acceptable for the sheriff to consider and then lodge it. I would do this in the knowledge that I can argue that I need to engage a solicitor to take on the proof diet and ask for the date with sufficient time to do so. Unless someone on here can give you a definitive process for defending the more formal ordinary cause I would engage the CAB solicitor now to take on the proof if required. But I roll the dice you may just want to end all this at the next opportunity CAB provide that assurance (providing they have not produced documentation).

It is the formality of the higher court where things have to be in writing i guess, in small claim there is more flexibility. I would speak with the solicitor that drafted the skeletal defence, it does not need much expansion to be honest which I am sure he will confirm. I could n't see the document of with their claims but assume they have stated their claim along the lines of 1) who you are and jurisdiction of court - so admitted 2), 3), 4) being details of your loan with original lender, detailed date of last payment, detailed date of last correspondence, detailed that they have had the debt assigned to the them and so on. Your solicitor can add simple additions to your defence like 2) where is they claim the loan has been assigned - defence is 2) Not known and not admitted the Pursuer is called upon to lodge vouching of same. Their failure to do so shall be founded upon. 3) where they claim the amount, date of last payment etc defence is 3) Not known and not admitted the Pursuer is called upon to lodge vouching of same. Their failure to do so shall be founded upon. As I say its the formality of the higher court but does not mean you can't deal with it yourself i's and t's need to be crossed and the expanded defence required will be no more that an extra line or two as above. You could engage the CAB solicitor now to defend it and have it thrown out, your solicitor could easily draught the defence as above and give you a script of what to say and when. Fundamental principle is that if you defend they must present documentation written, oral witness evidence to support their claim, if they are unable to do so the court has to dismiss you need not offer or give any evidence (though you would have lodged any evidence and stated a defence) you can ask the court to decide stating they have not offered anything to support their claims. So I think the sheriff is asking for you to formally state their need to lodge supporting documentation to their claims. Your defence is therefore in simple terms prove it which you need to state by extending the lodged defence. If it were small claim you would have been out of there.

The skeleton defence I would have thought be sufficient. It comes down to them having the paperwork as the motion for adjournment/sist has been declined. I would suggest that the sheriff is with you at the moment and they know they have to lodge the papers or it is dismissed so you have to bring her the sheriff with you when you are called to speak. Don't get personal issues like stress or worry involved its the law its not about that, its about procedure. So when called to speak after they don't produce the papers ask for dismissal as it is up to the pursuer to prove their case and without the paperwork that simply is not possible. Procedurally i don't think you can get decree absolvitor without the case being heard but hey ask for it and let the sheriff tell you otherwise. Fingers crossed they don't have the papers. If they do, ask the sheriff for the longest period for the next calling to engage a solicitor (this only really is to give you time to get the trust deed in place). Remember dismissal is essentially only a stay of execution as such. The worry will be that at some point, until time barred, they find the papers and lodge another claim against you . Going back to your first post you were running to get a trust deed this may be ultimately where you end up but whether you have to do this or not is outside your control so should not let it stress or dominate your life. All you can do if they have the papers is defend it or trust deed to protect yourself so you have options. So when it is dismissed move on and don't rush to check the post every morning live your life. And remember to ask for expenses with the dismissal.

Great to hear that.

My action was summary cause and not ordinary cause, so this is a bit more formal and my worry would be falling foul of procedure with a stuffy sheriff. You will have to lodge an objection to the motion. But first thing I would do today is see if there is a in court adviser/s solicitor with the Citizens Advice. Also try Falkirk Community Advice Service 01324 659 391. They may appear for you but certainly will help at the least keep you procedurally right and draft any forms. You probably qualify for legal aid so could be worthwhile speaking with a solicitor, but bear in mind they make money by going to court not by getting something dismissed at the first opportunity! I would do my perry mason bit first and try to get it dismissed but fall back upon them if it goes to the full hearing next year. Right if it were me I would through the dice here and still try to get this thrown out, so would lodge an objection to the motion. Being ordinary cause you may have to lodge a written motion rather than ask for a motion if it it were summary cause. This is where the advice will be helpful. There may be some on here that can help explain and draft what you need. So you need to download form G9a or G9 from here copy the court details as per the summons received court, date, names etc. and email to court an coy in optima. check with the court as you will have a hearing for this motion to be heard. at this hearing, and this is where the advice is needed, in my bag i would have a g6 form completed with a motion to dismiss. the points which i would make in a cohesive statement are the following 1) under the consumer consumer credit act 1974 sections 77-79 a debtor if supplied a request in the correct form must provide documentation relating to the loan within 12 working days failing which the debt can not be enforced in law. 2) this 12 day period has passed and this debt is not enforceable under the provisions of the act. 3) cabot are not the original lender, you have had no dealings with them. 4) there has been no correspondence from cabot, you have received no correspondence from the original lender 5) no deed of assignation has been supplied again required under the act. 6) it is clear that the response to your cca request cabot do not have this paperwork. 7) it is therefor unclear whether they do hold any rights to this debt. cabot have chosen to bring this claim to court without having any papers, they can not be in a position to know if they have any claim in law. 9) their solicitors would have advised them the court has three options to sist, adjourn or dismiss the claim. 10) you crave the court to dismiss the claim as clearly the cabot brought the claim to court when it has no legal foundation to be heard. i n failing to comply under the consumer credit act 1974 sections 77-79 the matter can not be heard until they have complied. i would explain verbally that there is no looming time bar impediment should the pursuer find the documentation and be in a position to present their claim to a court they would be free to do so. if the sheriff is not minded to dismiss then ask for a short adjournment rather than a sist to allow the pursuer to get the paperwork but if they failed to do so you would request the court dismiss the matter at that time should they fail to do so. at the hearing on the motion let them speak and then you speak when asked to do so. explain that this is all very stressful and that having a matter resting in court hanging over you when the pursuer can demonstrate no legal claim is unfair. you are unsure upon procedure (even if you are just play act) but you would ask the court to dismiss, you have a motion (take three copies) give one to the clerk and one to their solicitor. when you hand it over say you hope it is drafted correctly. i would then mutter just as the sheriff finishes reading that it can't be the case as a layman something be brought to court which legally it should and the court not agree with the defender as it is upto the pursuer to prove their claims and it is not for you to disprove. they are unable to do so, knew they were unable to do so and knew the risks. now let it hang in the air and see what the reaction is by the sheriff. two things your motion to dismiss may be heard at the sist hearing or you may have to wait to the options hearing. that is what i am unclear on. if you get the advice you will know but even if you don't be prepared for both options. my thoughts are that even if it is not dismissed it can only be sisted or adjourned. at this point i have not lodged a defence, i have not lost any legal argument or foundation, i have not aided or weakened my position even if i chose later to engage a solicitor. the adjournment and the sist both allow for the same argument to be made at a future hearing where it would more likely then be dismissed. others may add to this or come at it from a different perspective which may be better advice. if it is dismissed remember to ask for expenses also.

Did you send the CCA to Optima or direct to Cabot?

My first letter CCA request was sent on 16th June, dated response was 22nd acknowledging receipt of my CCA that they did not have documentation but they would request them from the original lender they acknowledged the 12 day rule but expected to have papers within 40 days. Not sure the relevance of the 40 days. Further letter dated 14th Aug stated they were unable to comply and therefore would be unable to obtain a decree against me in court but i should still pay - yeah right! If they are just churning these letters out as standard responses you should expect the first acknowledgement letter soon. Make sure you have a copy of the letter you sent and proof of postage and more importantly delivery to present to the court at the calling should you not hear anything. Again don't send anything to their solicitor, you can do an incidental application if the sheriff sets a proof diet and lodge a defence 14 days before the proof diet. Again as before if you get the response with no documentation argue as they are not the original lender. "They have not complied with your statutory request (have a printout of the sections of the statute, perhaps someone here can post it up or a link) if they do not have the paperwork they can not know if they have a claim in law. They have raised the action speculatively and as such understood the risk that without any foundation to their claim the court may choose to dismiss the action at this hearing today as it is for the pursuer to prove their claim and not for the defender to disprove. You would therefore hope that the court agrees with you and ask the court to dismiss rather than adjourn or sist as you understand a dismissal would still allow the pursuer to bring forward any action should they find the paperwork and believe they have a claim in law." If you don't get the response letter from them its is the same argument except hand copy of the letter and proof of delivery to the clerk at the court. "That upon receiving the summons you immediately sent the CCA request under the provisions of the statute, that as the pursuer have failed to comply, under the the statute they have no claim in law to pursue the matter and ask the court to dismiss." The same speculative argument should be made. The absurd thing is that I think they have more chance getting the adjournment without responding so fingers crossed you get the response. Also just wanted to say I got my expenses cheque in the post the other day and the decree extract of dismissal. The breakdown of the expenses allowed in my claim again based on 2/3'rds of lawyers scale charges from act of sedurant Initial Hearing CCA letter £25 (full) Preparation for the hearing £213 @ 2/3 = £142 Attending hearing £35 per hour @ 2/3 =£23.66 Mileage at 45p per mile as per HMRC rates =£30 Parking =£2.50 Second hearing for agreeing expenses Attending the expenses diet and preparation £142 @ 2/3 = 94.66 Mileage a 45p per mile as per HMRC rates =£30 Parking =£2.50 I would suggest this is the maximum you can claim as it is based on the statutory described fees. The "account of expenses" claim must be sent into court with proof and in the correct layout for the court. I am self employed so my hourly rates made my original claim more than that awarded as I had charged for my travel time to and from court. I guess if you are employed you can use your payslip to get your hourly rate and holiday time lost for appearing etc. Not sure why you paid the court £90 i did not have to pay anything just sent by my paperwork by post but make sure you claim this back on top of the above. Fingers crossed you get a letter from them before the hearing stating they have nothing at this point but will continue to get them from original lender. For piece of mind if you are still under stress of all of this go to the CAB and get them to explain the worst case scenario i.e. the have the paperwork which stands up. They will put your mind at rest as to the likelihood of an unsecured debt resulting in a repossession and how quickly you could have a trust deed in place. Having been through the mill (trust me I went to the darkest place you can go) the best and logical bit of advice i received was this. You have to understand that if something is out with your control and you have no way to affect the outcome, then accept that you cannot change what will or will not happen. When you realise this and accept it the panic attack, stress tightening in your stomach, sick feelings that occur when thoughts of the matter come into your head become less impactful. What i mean is, reality takes over more quickly, the stress of it all dissipates quicker and does not eat away so much as the rational thoughts take over. If you can not affect the outcome you can only plan for what to do in different scenarios. If A happens then I have to do X, If B happens then I have to do Y. This is empowering as you are in control , X might be a ****ty option but you will deal with it and know how to deal with it. This is not positive thinking mumbo jumbo, simply logical thinking. "I can't change what is going to happen so why am I letting it consume me" when this thought process starts to take hold everything is easier to deal with. Update if you get anything or if you have anything to ask.

I just had a summary cause action for cabot dismissed and received a cheque for the expenses. Cabot did not have any paperwork, after a a CCA request. No assignation papers, No letter informing me of assignment nothing. So before you go down the trust deed I would see what they have with the CCA do not engage their solicitors you are not obliged to do so. The first hearing will be where the sheriff decides if it is going any further then it will be at least 2 months before you get the next hearing called the "proof diet". Even if the proof diet goes off and the case is heard and they won you would have time to set up your trust deed after that. Optima will have a local agent appear at the first hearing with little information and instruction. This is where you have an advantage. CCA them today, you will get an acknowledgement. If they have anything they will send it. The letter if they don't gives you something to use in court. Hopefully before the 11th you get the second letter stating they don't have the paperwork and are still trying to get from the original lender. If I was you I would go to the calling hearing after doing a wee bit of reading with one or both (if the second makes it) of these reply letters from cabot. At this hearing their agent will state their claim and then you will be asked your response. State your intention would be to defend the claim as you have not received anything prior to receiving the summons, did not and do not have any dealings with cabot, they could be anyone you may have to acknowledge there was the original debt but you believe that had been resolved although not cleared. " However you would ask the court to dismiss this action as without the paperwork cabot should not have brought the case to court without knowing they have a claim or not in law." Use the first letter which will state the debt is unenforceable until they comply the second letter if you have it in time, two copies one for the court and one for their agent. Court principle is based on success and failure, cabot have taken the risk of bringing the action which is unenforceable in law without having the paperwork (which in the court procedure they should submit at the outset). Their risk was that the court would dismiss the claim as they can not show there is a claim based in law. The local agent will ask for either an adjournment to get the paperwork and further instruction or to sist the action which is an indefinite longer adjournment you don't want either and if there is to be one get the adjournment as at the next calling if they don't produce it you will definitely have it dismissed. I would then ask the court "that as a lay man with no understanding of the law or court procedure that the pursuing solicitors should know the law and know the risks". They have admitted it is unenforceable therefore have no case in law and the court should dismiss the case in your favour and not allow the pursuer the time to do the work they should have done before starting the action. That in dismissing the claim you understand that the pursuer may choose to raise an action again at a future date. If the sheriff agrees with you ask for expenses and claim expenses state that as party litigant you are entitled to 2/3 scale of that as allowed by solicitors under the act of sedurant. It all is based on the CCA letter replies. So fingers crossed you get those. It will just kick things into the long grass for a while until but more probably IF cabot get their hands on the paperwork. You are miles away from needing the trust deed so don't rush to tie yourself up with that millstone just yet. As I say you can wait to get decree against you before you need to go down that route for piece of mind go to CAB and speak about the trust deed they will confirm wait till decree. Repossession when they don't have a charge over the property protracted and if you're married with kids takes a long time. More than likely if they had a decree they would serve and inhibition on you i.e. you can't sell your house and if you do they need to be paid from the proceedings. I hope this puts your mind at rest a little you have options and strong chance the paperwork is not available in short or long term. No need to rush to trust deed. Better more knowledgable people on here will help, just thought my experience might be of use.