Hi

I have a Scottish small claims summons with a return date 2days away (12/05/11) and a hearing date 26/05/11. It is from Link Financial for 2.9k claiming to be a BOS debt from a credit agreement in 2000, I am not sure what it was and when if any the last payments on the account where, its so long ago I dont remember. The return day makes this urgent and I have been hiding from it.

I dont think the original debt was with the BOS it was maybe with Halifax. I have asked the solicitors acting for Link to provide the agreement it refers to, only via e-mail. They have waffled on that it all gets done on-line and will send to me soonest, not going to happen in 2days.

We have never had any contact with Link, they did call our neighbour's and pretend to be friends a few times. I once told them to put it all in writing on the phone but only got more threats and no substance.

So what do I do now.

I believe I can apply for more time to defend the case ?, should I fill in the form and dispute the claim and say I intend to lodge a defence so I dont miss the return day ?

I have read lots about different sections of the consumer credit law and data protection act and template letter and now I am not sure what is the actual process I should take here in Scotland.

I want to ask for proof of the agreement and all history on the account, who do I ask and how

I want to ask for an extension of time to lodge a defence with the court, How do I do that ?

If they do not provide the agreement what should I do and when

Hi and welcome to CAG, if you have made no payment and had no contact with this alledged debt for over 5 years then it is statute barred and unenforcable, there is a letter template on this site to copy and send to Link.

Thanks Blueda. I guess the contact issue is not exactly easy to prove or dissprove.

We have not spoken with them, they have tried to use some odd tactics and I only found out who they where by doing some research on the numbers.

Do you or anyone have any ideas what I should do with the small claims summons. Should I send it to the court saying I dispute the claim and intent to lodge a defence ?

Should I then ask for an extension to prepare my defence ? (who do I ask for the extension, Link, their solicitor or the Court )

In addition to the letter stating the debt is statute barred should I also send a letter asking for the credit agreement and history on the account.

Lastly, I have seen so many letters on this site I am not sure which is right or wrong.

thanks

I would send the letter from the template link supplied by rebel 11 to Link financial, send it first class recorded and print your name, do not sign, i believe that they are using bluff on you, best to make all correspondence to them in writing not over the phone.

Thanks Blueda and rebel. Do you think I should also send them CCA letter ?

I have to reply to the sherrif court tomorrow so will say I intend to dispute the claim. Hopefully someone will tell me how to apply for more time to arrange my defence using CPR15.5 ?

I hope then before the time runs out the SAR and CCA letter will bear fruit. ?

Go ahead with CCA letter, SAR and request for letter of assignment , template letters are on this site.

CPR do not apply up here

you need an incedintal application

n the XXXX Sheriff Court

Pursuer -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

Dear Sirs

REQUEST FOR INFORMATION

I have today received a court claim from your firm as referenced above. In order to file a defence and counter claim I require some further information from you. 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. You are requested to supply me with a true copy of the executed credit agreements to which you refer to in your claim together with any terms and conditions that applied to these accounts at the time they were opened and at the time of alleged default. In this respect, your attention is drawn to the compliance of such documentation as prescribed under Section 78(1) of the Consumer Credit Act 1974 (herein referred to as “the Act”).

2. All records you hold on me relevant to this claim, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your firm.

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 name of bank/company.

c. True copies of the default notices.

d. 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.

e. 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.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. 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.

h. Copies of statements for the entire duration of the credit agreements.

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.

In relation to the above, I draw to your attention to my previous correspondence with your Client and the numerous agencies that they have instructed in relation to this matter.

Your Client has not fulfilled their obligation under Section 78(1) of the Act. The documents previous provided to me under a Subject access request do not conform in form or content to Section 60(1) of the Act and as such are not enforceable under Section 127(3) of the Act.

I also refer you to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it must embody within the agreement, the prescribed terms laid out in the SI1983/1553.

Your attention is brought to the fact that I have requested such documentation from your Client and their agents in relation to this matter. Should your Client continue with this action this documentation will be brought to the attention of the Court and my previous attempts to avoid legal proceedings.

Thanks IDAinFife for the request letter. I need a little further clarification if you can.

I have said I intend to dispute the claim and now have until 26th May (hearing date), I had no choice but I have not put any information about my defence on the paperwork.

I have sent SAR and CCA to Link F.

I am just working on the letter you provided to go to Link's solicitor. ?

I am not sure what to put at the top of the letter where this appears

(on the XXXX Sheriff Court)

I need them to respond faster than 14 days. so I have changed to 7, they did confirm via e-mail that they would send me the CCA once they got it.

Can I write to the court and explain Link and their agent have not provided me with any information to support their claim, that we dispute their claim and until we see their evidence of a valid agreement we are not able to prepare our defence, it looks unlikely that they can provide the documentation requested prior to the hearing date. Asking for extra time in order that they can provide the relevant documents so as not to waste the time of the court.

you need to send this to court and to the sols and keep copies

NCIDENTAL APPLICATION

Sheriff Court:

Summary Cause Summons Number:

Date of Next Hearing:

(Their name) Pursuer against (your name) Defender

(address) (address)

The defender requests the court to postpone the hearing fixed for xxxx 2009 and that the case is temporarily sisted.

The defender also seeks an order for the recovery of documents from the pursuer in relation to the claim made against the defender. These documents are vital to the defender in order to compile a full defence. The documents requested to be recovered are listed below'

This allows you to ask the court for more time

xxx sherriff cout you fil in the xxxx with the actual name of the court

alos here is a good thread for you to read through

http://www.consumeractiongroup.co.uk/forum/showthread.php?180427-rrfcfan-in-court-with-WF-All-on-again/page4

Hi Ida asked me to have a look at this one to see if there was anything that I could add. From what I can see I dont think there is much

It looks to me as if the first thing you have to do is to seek a postponement, and Ida has covered that. Thereafter there are two things that you need to explore

1. do they have the necessary paperwork for the court even to be able to make an order? For this they need a document bearing your sig AND the prescribed terms (rate of interest, repayments details and how the credit limit will be determined, or what it will be). Now the problem here is that more frequently they are able to come up with an application form that you will have signed, but more often than not they arent able to show that the prescribed terms were part of the same document, so sometimes they just produce any sold set of terms and conditions and assert that this was the other side of your application. They will do this even if its clearly a mailer - so among other things on the other side there will their name and address for you to send this back - but the T&Cs run to four pages.
   
2. whether or not the account is statute barred - have you acknowledged the account in the last five years (this will work back btw from when the court papers were issued - so if 1st April 2011, the relevant date would be 1st Arpil 2006. One thing to note here is that they might assert that the account is only statute barred after six years - but that is only in England - in Scotland its five). So we need to find out if you have made any payments in the last five years.
   

You should be able to get both of these from a Subject Access Request under the DPA, which I note you have already done. So, its about getting the postponement to get the evidence that you require, which they hold. The thread recommended by Ida is a good read and would be useful in case they try to suggest that you are the one delaying and that the court should move to judgement rather than a postponement.

I cant really see any more, but now I am subscribed if you post again I will be notified and I can help, then I will.

thanks SFU

Thanks Ida and SFU for all of your help here. I am feeling a little more positive about it.

I am doing the Incidental Application Letter now and I just need to clarify I am asking for all of the correct documents (see below)

I am going to PM you SFU with an interesting bit of information I dont want to put on a forum. No never paid any money, my partner has written to them and spoken to them asking to prove their claim in the past. I have never acknowledged it.

Should I put this in the IA letter where it says list of documents requested, it is from my information request :

1. a true copy of the executed credit agreements to which are referred to in the claim together with any terms and conditions that applied to these accounts at the time they were opened and at the time of alleged default. In this respect, your attention is drawn to the compliance of such documentation as prescribed under Section 78(1) of the Consumer Credit Act 1974 (herein referred to as “the Act”).

2. All records held on me relevant to this claim, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by the pursuer.

b. Where there has been any event in the 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 BOS.

c. True copies of the default notices.

d. 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.

e. 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.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom the pursuer have disclosed my personal data and a summary of the nature of the information they have disclosed.

h. Copies of statements for the entire duration of the credit agreements.

3. Any other documents you seek to rely on in court.

Hi SFU, I tried to send you a PM but your mail box was full. I was hoping you and Ida could check my IA letter for me.

thanks

Yes I know - got an email.

Have you sent them a SAR - this reads like. Its certainly comprehensive, but once in front of the Sheriff you will need to be sure that you will be able to offer a good reason for why you want it all - you will need to explain why/how every request relates to the development of your defence. They dont like fishing expeditions.

I would put it in as is, bearing in mind the above. The worst that will happen is that he will order some parts of it - but if you dont even ask ..............

thanks SFU, what about format and signature, should it be in letter format with my address etc or just as it is ?

Should I sign it ? or should I have it signed PP by my partner so they cant copy my signature ?

what i usually do is to type my name at the bottom - never sign. There are instances on here of signing over a number of characters - for instance **************. Only occassionally have I been challenged on the lack of a sig - and they usually back off when they realise its getting them nowhere. They would much rather have your money than your signature.

The court says I do not have time to lodge an incidental application and I need to go along to the court and ask for it there !!!

They said that an incidental application needs a hearing and this would be fixed for the same court and time as the hearing ?

Seems wrong to me, apparently the court just wants to see if in agreement can be reached at this stage ?

Any advice, I really dont want to go to court and now it seems I have no option. ?

that is the way that it works - to try to get an agreement.

But from what you say, they dont have the necessary to get what they want.

Two things I would suggest

if you can spare the time before your own hearing, get down there and see how the cases are dealt with

- at least then you know what you are in for rather than dealing with the unknown when you get to a hearing,

one approach is that they can show lending took place

- they will have the statements showing that you had the money from the account

- so they would like it back please.

But, remember

- and dont be afraid to tell the old boy (or girl) this

- that if they havent managed the signing requirements (s61 1a) then the court cannot issue an enforcement order

- it is SPECIFICALLY prevented from this course of action by the Consumer Credit Act 1974 s127 (3).

Now at this point either of two things might happen -

they throw in the towel because they know that there is no bit of paper going to get them what they want:

OR

the Sheriff orders them to come up with the documents that you would have asked for

- take a list with you, arrmed with reasons why you want each one.

My guess is that they will huff and puff but not come up with anything,

because if it existed they would have let you see it by now.

The thing to hold on to is that it isnt a court of morals (you got the money, so pay it back)

but a court of law and as Francis Bennion (who wrote the CCA) observed in a now famous quote,

"127(3)) entirely on my own initiative.

It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable,

and that the court should not have power to relieve it from this penalty.

Nobody queried this, and it went through Parliament without debate.

I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed." (the House of Lords case referred to is the Wilson case).

Other thing you might do is to say that to develop a defence you need the pursuer to provide certain documents

(eg your executed agreement) - go with your list - and ask for an extension.