DX, or anyone,

can you help with a wee quick question (or 2) please...?

Thought I'd just use this old thread of mine,

rather start a new thread - hope that is OK?

My friend has been served with a Summary Cause (Scotland)..

. I have sent a CCA request, on her behalf, and await the outcome.

It is pre 2007, and by the looks of her credit file, the default date on her account was just a week or two OVER 5 years ago, from the date on the court paperwork

- meaning, I think, it is already statute barred.

She assures me she's not had any contact with them, nor made any payment in that time.

So, it may be a clear cut case, based on the statute barred status of the account

Am I correct in assuming that the statute barred period starts on the date of default of the debt?

Also, the papers were simply posted thru her door,

but state they were delivered to her in the presence of a signed witness.

In other words, they didn't send by recorded delivery,

and nor did they hand them to her in person.

Does this not mean that they were served incorrectly?

It is shoosmiths, acting for cabot, for a capital one debt.

I think they are on a hiding to nothing,

but I'm interested to know if, rather than going to the bother of defending,

that I can simply write to them, on her behalf, stating they've both served the papers incorrectly,

and that the debt is statute barred, and threaten to go to court to defend and seek all possible expenses...

I've won 2 Ordinary cause actions roughly based on this method...

Any quick advice please guys and gals?

there is no relationship whatsoever between defaulted date and SB date!!

they are totally separate.

SB date is last payment or signed letter say + 1 mth to be certain.

so the debt is EXTINQUISHED as its scotland

no court claim to even answer.

Cheers DX, awesome as usual..

. So, the default usually occurs a couple of months after you stop paying them,

and they lose patience chasing you? ;-)

How about the serving of the papers?

Is it simply suffice to say you witnessed it,

then pop it thru someone's door?

Surely that is someone's word agains yours?

At least if you sign for a recorded delivery it carries some weight,

as does being presented them in person?

serving papers in Scotland is simply 2 sheriffs doing it

one to do it

one to sign as witness.

nothing wrong there.

again you are confusing default with SB

they are not linked.

as I said

SB date is last payment or signed letter saying its mine + 1 mth to be certain.

defaults are immaterial to court /SB dates

if a debt is SB'd its SB'd no matter what they did do

didn't do

send or not send.

it is absolute

and in Scotland

wipes the debt out hence use of the word extinguished

in Scottish law

Cheers DX - appreciated, as always...

DX - hope you pick this - didn't wanna start a new thread, and have read other threads where you commented on this subject, but just wanted a quick answer from you please...?

OK, so Cabot Financial (UK) Limited have instructed Shoosmiths to issue a summary cause, for some £4k, to my friend. It is for a credit card debt, and she thinks the debt is statute barred - but she hasn't kept any previous correspondence, and as she can be a bit flakey(!) I'm wanting some extra ammo for her defence of the action...

It is a pre 2007 agreement. I have cca-ed Shoosmiths, and they are saying this might take some time - pffft - it is now 3 weeks and nothing. I have sent a SAR to Capital one (original lender) and had nothing yet, but it's only been 2 weeks - only once we have this will I know that the debt is truly statute barred.

Anyhoo - Cabot Financial (UK) Ltd - their licence is still showing as lapsed on the FCS website, and I've read conflicting info as to whether this is a defence, or whether they can simply have someone else in their group collect the debt - but what if the summary cause is listed in the name of cabot financial (uk) limited - surely that means it is them collecting the debt, and not another part of their group? As such, is this a reliable defence?

they come under collective licence etc usually a take over company! others will comment

 

Anyhoo - Cabot Financial (UK) Ltd - their licence is still showing as lapsed on the FCS website, and I've read conflicting info as to whether this is a defence, or whether they can simply have someone else in their group collect the debt - but what if the summary cause is listed in the name of cabot financial (uk) limited - surely that means it is them collecting the debt, and not another part of their group? As such, is this a reliable defence?

That would not be a viable defence anyway...whether it was true or not....which its not....you respond to their particulars...

Andy

ring cap1 and ask

dx

DX - hope you pick this up (again!)

OK, so this recent summary cause I'm helping a friend with. To recap - £4k debt, shoosmiths chasing for cabot, on a capital one debt they have purchased. Friend checked their credit file, and it defaulted JUST over 5 years prior to the summary cause being served, which means she's had no contact with capiltal one (original lender) for 2-3 months prior to this. As such, I'm certain that it is definitely statute barred (Scotland).

Anyhoo, we went to court in August, on the original calling date, sat for an hour, before a clerk pulled us aside and said that shoosmiths had asked to sist the case (until this week), but had not contacted my friend to give her any notice of this.

Capital one were sent a SAR on 7/7/16 - and have still NOT complied with this. Nor have Shoosmiths been able to turn up the original agreement, in any form.

Shoosmiths wrote to her a few weeks after the CCA request, waffling some crap about confirming that 'this matter will be placed on hold until we are able to provide this documentation'.

Two weeks later, Cabot, themselves, wrote to her saying they currently did not have the CCA on file, but stated that they requested it from the original lender. Given that capital one, to date, still haven't replied to a SAR, nearly 3 months down the line, I'm guessing this isn't forthcoming.

However, Cabot also wrote this in their letter: 'I acknowledge the 12 day time limit to provide this information before the account becomes unenforceable, however, as we have to request the details from the original lender I anticipate that we will be able to provide this within 40 days. In the unlikely event we are unable to obtain this information within those time limits, we will write to you again'.

NOTE: the 40 DAYS...? time limit for a SAR?

SO, questions are these:

they haven't written to say they have the paperwork (I'm guessing their not actually obliged to, but surely, capital one should have been obliged to respond to the SAR, had the paperwork been found?)

SO, should we email Shoosmiths, or Cabot, to ask if they will definitely be showing in court this time around (Thursday this week), as taking time off work to attend, for them to simply not turn up as they've requested a further sist, is not acceptable...?

And should we point out to them that the agreement, even if they turn up the paperwork, is statute barred, and they are not entitled to take my friend to court for an unenforceable debt?

Is there even a template letter for something like this??

Wouldn't the court take a dim view of them doing this, knowing they had no paperwork to proceed with and knowing it was statute barred? (And is statute barred the correct terminology?)

Looking forward to your valuable assistance yet again...

(ps: I've just been awarded £10K for mis-sold Egg PPI)

you were advise to ring cap1 and confirm SB status did you?

you should have simply put in the statute barred defence

which you should do this time

will kill the claim dead

no need to bother with CCA/CPR or anything irrelevant...

said all this months ago before the first hearing....

DX, sorry - u said 'ring cap 1 and ask' - I assumed u meant about the cabot licence

- must have read it as 'ring cabot and ask' - didn't know you were referring to the statute barred status.

We were waiting on the SAR to check what info they had for my friend,

but as this still hasn't come, a few months down the line, I'm thinking that Capital one don't have anything at all?

Should I email Shoosmiths for her, and point out the statute barred status now...?

no never entertain directly

go confirm SB status.... ring cap1 and ask date of last payment/usage by HER

and?

dx

would be nice if you took the trouble to update cag upon your thread...we helped you ...now help us...

many members helped you get help

cag relies upon resolution to threads so others like you can find and read about how to solve their like issues...

dx

Humble apologies DX, et al, I was utterly convinced that I had updated on this at the time... I had to read back the thread to see I hadn't - very remiss of me, sorry... I think I was confusing it with the update/conclusion on my own case...

So, regarding my friend's Cap1/Cabot thingy:

the account was clearly statute barred, and were told this, but they still pushed for the court date. As such, I attended with my friend, and when the case was called, and I told the Sheriff that it was statute barred, the local solicitor they were using to represent them acknowledged this right away - as though she clearly knew already, but was just pushing forward regardless - and they dropped it without a problem, with the Sheriff shaking her head...

Many thanks for all your assistance throughout all of this...

Many thanks StressBall

thread title updated to reflect the outcome.

Regards

Andy

well done

should have asked for your costs..

esp as you'd told them it was SB'd and they still made you attend.

sheriff would have liked that...