Hi Guys,

This is my first post here and i'm really desparate for some help.

I've just signed for a citation regarding a credit card debt that i cannot afford to pay.

The Credit card is a clydesdale bank mastercard and

I wrote to them in march this year to say i was having trouble and would they look at stopping the interest for a period of 6 - 8 months

to help me get back on my feet and maybe take a token payment of £25 per month in the interim.

The reason for his was my mortgage was due to be changed and i wanted to draw down extra to pay off the credit card.

I received nothing back from them until

a few months later i received a letter from Jeremy Sutcliffe solicitors asking for full payment.

I called them and explained i had written to the credit card company but they advised me the debt had been passed to Brunswick collection services for collection.

I called them and they wanted a breakdown of everything i owed to see if a payment plan could be agreed.

I started looking at what i owed and to whom,

but i started being bombarded with telephone calls almost hourly by brunswick collections asking for me to make contact.

I had to unplug the phone as this was upsetting not only me but my children.

time went by and i suppose i tried to ignore the debt as with no phone ringing i forgot about it for a while.

then on 2 October Jeremy sutcliffe wrote to me again and said that they had instructed Yuill & Kyle solicitors here in scotland

to raise an action against me for recovery of the amount (£9,500 approx),

i found this site and used one of the templates to write to the credit card company on 14 October

and ask for a copy of the signed credit agreemane and notice of assignations

together with a request for cessation of any debt enforcement action until my query has been resolved.

However, I have not received anything from the credit card company yet

and i've received the citation this morning and i'm at a loss what to do.

Can anyone offer any advise???

Was the citation delivered by a sheriff officer?

What does the citation state?

Is it an initial writ?

Have you received any other forms?

Hi Rory,

the citation was sent by recorded delivery and

it is an inital writ and warrant together

with forms 03 (applicaiton for time to pay direction)

and form 07 (notice of intention to defend).

And what does the initial writ actually state (it has to be worded correctly).

Hi Rory,

The initail writ gives the banks name etc as Pursuer and and my name as Defender and says;

The pursuer craves the court to grant Decree against the defenders for payment to the Pursuer

for the sum of nin thousand six hundren and forty five punds and forty six pence sterling with expenses

CONDESCENDENCE

1.The parties are designed in the instance

2. The defender resides at XXXXX.

The defender has been resident there for more than 3 months immediately preceding the raising of this action.

The nature and circumstances of the Defenders residence indicate that the Defender has a substantial connection with Scotland.

This ground of juristiction of the court is the domicile of the Defender in terms of section 41 (or Section 42) of the civil jurisdiction and judgements act 1982.

To the knowledge of the Pursuers no proceedings are pending before any other court involving the present cause of action and between the parties hereto.

The Court accordingly has jurisdiction.

3 The Pursuers advanced monies to the Defender in respect of a Mastercard

- Credit Card agreement account number XXXXX.

Averred the DEfender has been in default of the agreement

resulting in the full balance thereof being due and resting owing to the Pursuers.

As at 6 October 2008 the total balance is now £9,645.46 which is the sum sued for.

The Defender has refused or at least delayed to make payment of the said sum due.

This action is accordingly necessary

PLEA IN LAW

1. the pursuers having advanced monies to the Defender as condescended upon, are entitled to payment of the price thereof

2. The sum sued for being due and resting owing by the Defender to the Pursuers in respect of the said monies, as condescended upon, Decree should be pronounced as craved.

3. The Defenders being in breech of the parties agreement, and the sum sued for being due in terms thereof, Decree should be pronounced in favour of the Pursuers as craved.

IN RESPECT WHEREOF

Yuill & Kyle Solicitors

79 West Regent Street

Glasgow

G2 2AR

PURSUERS AGENT

What year was the credit card taken out roughly?

Do you know if there are a lot of charges on the account e.g. late payment fees, etc?

Have you received a default notice at any point and if so do you still have it?

Even if they manage to produce a conforming agreement containing all the prescribed terms you could lower the balance by reclaiming charges on the account. You can also apply for a time order if need be whereby the court would set the amount you pay each month based on your ability to pay.

Of course if they can't produce a conforming agreement then they'll lose and you won't have to pay anything.

Thanks Rory,

i can't remember the year i got the Credit card i think it was 2004 or possibly before then.

There will be alot of charges on the account as i have not paid anything since Feb.

I don't thin i did receive a default notice but i will check, i'm pretty sure i did'nt though.

As i said i wrote to the Credit card company and explained my situation but to no avail.

What do you suggest i do,

i have until 14 November to get back to the court and i'm not sure what i should do.

The 12 days given to them to produce my CCA runs out on Monday as i sent the letter to them recorded delivery on 14 October.

What do i do if nothing arrives on Monday?

If they have no signed agreement will the courts dismiss their claim?

What should i do?l

Can anyone offer any more advice?

Please

Hi i'd be really grateful for some more advice re the citation i received.

:confused:i've also not yet received my CCA from Clydesdal Bank Mastercard,

can anyone tell me what i do now?

is the absence of a CCA grounds for me to dispute the action?

will a sheriff court judge dismiss their claim if they do not have a signed CCA?

Hi i'd be really grateful for some more advice re the citation i received.

 

:confused:i've also not yet received my CCA from Clydesdal Bank Mastercard, can anyone tell me what i do now? is the absence of a CCA grounds for me to dispute the action? will a sheriff court judge dismiss their claim if they do not have a signed CCA?

Can anyone offerme any advice?

I need to make a decision soon,

either admit the debt and ask to make payments

or defend/dispute as i have not received the CCA

and other info i requested.

please please please, can someone look at my problem and give me some advice

thanks

As it's an ordinary cause action

you will need to seek legal advice from a solicitor that understands consumer law.

The CAB should be able to help you find one in your local area.

The reason I say this is not just that substantial costs can be awarded in an ordinary cause action

it's also a case that defences have to be worded properly

- it's a far more formal process than a small claims or summary cause action.

While I can help you with the points of law and case law that should be in your defence

I am not qualified to ensure that the wording of the defence is correct.

I could do it for you if it was a small claims or summary cause where how the defence is presented is less formal

but certainly wouldn't be comfortable writing an ordinary cause one.

I think what you also need to do is ask for productions ASAP

- this is the formal process of asking for documents that are important to the case from the other side.

You need to send this at least via recorded delivery.

This is what you should be asking for:

In the XXXX Sheriff Court

Pursuer -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.

 

Yours sincerely,

 

XXXX (type, don't sign).

To answer your questions

is the absence of a CCA grounds for me to dispute the action?

Yes it's a complete defence. section 127(3) of the Consumer Credit Act

precludes the court from granting an enforcement order (decree)

if either the agreement can not be produced

or if the agreement does not contain all the prescribed terms as required by the Act.

So simply put if they don't produce the agreement

or the agreement isn't laid out correctly then the sheriff has no other option than to throw their case out.

Thank you so much Rory,

i will send the letter tomorrow by recorded delivery and try and make contact with the CAB.

thanks again:)

You're very welcome.

If they don't supply the copy of the agreement (which is likely) let us know.

As I said I wouldn't be comfortable writing an ordinary cause defence as it has to be worded correctly

but I can certainly provide you with the information that would make up the bulk of the defence

e.g. the various statutes and case law you should be relying on.

I will do,

can i ask if i can change your letter to ask for the information within 7 days as i need to respond to the sheriff court by 14 November,

or should i leave this to a solicitor.

Also is it worthwhile giving Clydesdale Bank a call to see if we can sort something out without the need to go to court?

Yes you can change it to 7 days.

As they are taking you to court they should have (in theory anyway) all the information to hand.

You can phone Clydesdale Bank even at this late stage

although I must point out that it is unlikely that they will stop the court action now that the writ has been issued.

It's more likely that they will wish to go to court to enforce the account through attempting to obtain the decree.

if you do come to some sort of agreement you must get this confirmed in writing.

It's also worth pointing out though even if they do manage to produce a complying copy of the credit agreement

(however unlikely this may be) and got the decree granted

you could apply for a time order giving you the opportunity to pay by installments based on your ability to pay.

The amount that you would have to pay each month would be set by the court not the creditor

and would be based on your disposable income rather than how much the creditor wishes you pay.

Thanks again Rory,

i will change the letter.

Re my disposable income,

will this be my own disposable income or my husband and my joint disposable income.

The reason i ask is that we are not in a good position finacially although with the exception of this debt we manage to pay everything else

however, we do rely heavily on any overtime that is available and help from our family to get by.

We do not have any disposable income each month it all goes out, in fact without any overtime payments we owe more out than we make.

The debt is in your sole name so it would be your income and priority expenses that would be taken into account.

Your husband has no liability for this account a it is not joint.

I think it's worth knowing your position legally if there is no copy of the agreement or if it doesn't contain all the prescribed terms necessary before phoning Clydesdale.

So I'll post up the relevant bits of statute that mean that they would lose if they can't produce an enforceable copy of the agreement later tonight.

Thanks again,

one final question, do i send the letter to the Clydesdale Bank as they are the Pursurers or their agent as indicated on the writ ie Yuill & Kyle Solicitors

You send it to the solicitors.

Okay

the legal position is that any agreement needs to contain all of the prescribed terms required

by the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482).

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

and are

- A term stating the credit limit or the manner in which it will be determined or that there is no credit limit,

A term stating the rate of any interest on the credit to be provided under the agreement and

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments,

which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

Where an agreement does not have the prescribed terms

it is not compliant with section 60(1) Consumer Credit Act 1974

and therefore not enforceable by s127(3).

The case that supports this view is the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul)

which confirms that where a document does not contain the required terms under the consumer credit act 1974

and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482)

the agreement cannot be enforced.

Although this decision is not binding on Scottish courts (it's only binding on those under English law)

it is what is termed as a persuasive argument and the judge would need to have very good reason based on law rather than opinion not to agree.

Any such agreements must be signed in the prescribed manner by both debtor and creditor.

If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974.

If no Default Notice in the prescribed format was ever received

any default notice wouldn't be legally valid.

To be valid, a default notice needs to be accurate in terms of both the scope and nature of breach

and include an accurate figure required to remedy any such breach.

The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

Failure of a default notice to be accurate

not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255)

but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt,

but would also potentially give rise to a counterclaim for damages

where damage occurs to your credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119).

Again these are English legal cases but would be persuasive.

It should also be noted that

schedule 3, s11 of the Consumer Credit Act 2006

prevents s15 repealing s127(3) of the 1974 Act for agreements made before s15 came into effect.

What this means is that your agreement is governed by the 1974 Act

not the 2006 one

so if the agreement can not be produced

or does not contain the necessary prescribed terms

then the court is precluded from making an enforcement order.

Thanks again Rory for your help,

I tried to arrange a solicitor today but it seems i have to wait until monday as none were available.

i've still not received a copy of the CCA as requested in my letter to Clydesdale Bank Mastercard,

however, what i did receive today was a letter apologising that i found it necessary to raise a complaint,

and stating that the relevant department has received my Consumer Credit Act request

and are currently dealing with the matter and

it goes on to say

" I understand that the court issued correspondence pertaining to the legal action

however,

i can assure you that such action has been sisted pending the response to your request under the Consumer Credit Act"

and also states "

if we do not receive a response from you within eight weeks of the date of this letter, your compliant will be considered closed"

The letter is dated 31 October 2008.

Is this normally what they would do?

or do you think something else is going on?

I received this letter after i had sent off ,by recorded delivery, the letter you suggested in your earlier post.

The letter is dated 31 October 2008. Is this normally what they would do?

No

but a lot of creditors have lost cases due to not being able to supply an enforceable copy of the agreement

or,

as in your case,

any agreement at all.

This has hurt them in the pocket and as your case is an ordinary cause they would be liable for your costs if they were to lose.

I would check with the court on Monday to make sure that any action has indeed been sisted.

A sist means that the case has been put on hold in case you don't know.

Thanks, i will check with the court first thing.

Do you know if when a cases is 'sisted' is it usually for 8 weeks as per the letter i received, or do i need to ask the court for how long it is on hold for?

The 8 weeks doesn't relate to the sist. 8 weeks is how long they have to resolve complaints.

The court should send you a letter informing you of the sist and the conditions of the sist if the case has been sisted.

Good luck! I had a friend who were contacted by Yuill and Kyle re a debt, they seem to be the main firm in Glasgow that deal with it.