Hi all,

Just wondering if anyone can shed some light on this.

A debt collector based in Manchester has instructed a solicitor based in Edinburgh to raise court proceedings in Scotland (Simple claims procedure) for an alleged mail order debt.

The claimant claims that they have been legally assigned the debt however no default notice or notice of assignment was ever received.

They haven't been able to provide anything so far other than an agreement which has a different date to what is stated in the claim.

The Claimant hasn't complied with a CCA 78 request submitted nearly two months ago , their solicitor did provide a statement of the account however the amount is different from what they are actually claiming on the claim forms

The creditor hasn't complied with a CCA request I sent them either,

would I be right to say that if they are to comply fully with the request the statement they give should state the balance is £0 as the debt has been sold?

The creditor sent me a letter and within this letter they claim the debt has been sold and it was sold on the 18th. It's a strange letter from them as they claim i sent them a money order or promissory note to try and discharge the debt when my letter simply requested information?? It made no mention of any of this.

The claimant claims the default notice was issued on the 17th within the claim,

the creditor hasn't mentioned any default notice but said the debt was sold on the 18th so the creditor essentially sold the debt before a default notice was even served due to postage time?

Strange because in the claim the claimant claims they were assigned the debt on the 29th which if true, would still only be 12 days into a default notice and that doesn't include service time.

The claim also says the claimant was entitled to issue a default notice when the debt hadn't even been allegedly assigned when the default occurred, it was the creditor that was entitled to send this as the claimant was not a party in the original contract?

the contract they have supplied states the governing law is England and Wales.

In a letter from the creditor, they state they are not in the process of initiating a claim however they do reserve this right.

Action has been started in Scotland so if it's been legally assigned

how can the creditor still claim to reserve this right and what would stop them raising action in an English court as well?

Should I raise this question?

The judge has asked for a case management discussion

No CCA response means you have a solid no paperwork holding defense.

The DCA and their pet rent a solicitor is just trying to call your bluff. They dont care about regulation or law. They just want money.

Can you give more background on the debt please. Including dates, dates of last payment etc etc.

Thread moved to Scotland Forum...please continue to post here to your thread.

Regards

Andy

Please completed this

https://www.consumeractiongroup.co.uk/forum/showthread.php?475116-You-have-received-a-SCOTTISH-Court-Claim-What-you-need-to-do.-**updated-April-2017**

Simple claims procedure

Who Is The Claimant: capquest investments limited

Who Are the Solicitors: shoosmith LLP

What type of action? (simple/Ordinary): simple

What is the claim for :

This is exactly as written on the claim form

D1

1.The claimants are a finance company which inter alia operates the business of debt purchasing.

By virtue of a debt purchase agreement ("the agreement") between the claimants and shop direct limited ("the original owner") dated 29/10/2013,

2.the claimant acquired title to and was assigned the right to payment in respect of all debts and other monetary claims of any nature due or owing by the Respondent to the original owner which were in existence as at the date of the agreement, and in particular in relation to the contract hereinafter condescended upon.

3.The said assignation was intimated to the Respondent by way of a written notice on or around 29/10/2013.

4.The agreement between the Respondent and the original creditor upon which this action is based was regulated under the consumer credit act 1974.

5.Further information in relation to that agreement is contained in section D4, where we set out the sums due and the basis upon which they fell due.

D4

1.The said contract between the original owner and the Respondent is a regulated credit agreement in terms of section 189 of the consumer credit act 1974.

2.It is dated 18/03/2013 and related to a mail order account issued by the original owner for Littlewoods with account number 9856XXXX.

3.On numerous occasions between 18/03/2013 and 17/10/2013 the Respondent utilised the credit facility created under said agreement by purchasing goods and services on credit using the facility.

4. The original owner issued statements in relation to the account on a regular basis upon which would be stated the current balance the minimum payment which required to be made in terms of said agreement the payments to be made each month fluctuated from month to month depending upon use.

5.It was a term of said agreement that a failure to meet any payment on a due date would render the account in default and would entitle the claimant to serve a notice of default on the Respondent requiring the responded to remedy the breach within 14 days failing which the agreement would be terminated.

6.On or around 17/10/2013 the Respondent failed to make payment of a sum which had fallen due and the said account thereby entered into default.

A default notice was issued to the Respondent on 17/10/2013.

7.The Respondent failed to remedy the default following upon service of the said notice and the account was accordingly terminated in accordance with that notice.

The account remains in default.

8.The sum due in terms of the said agreement amounts to £685.35.

The right to receive payment of the sums due in terms of the said account vests in the claimant.

D8

The claimants agents issued 3 letters and made 2 phone calls between 16/05/2017 & 29/05/2017 requesting they contact the agents to discuss.

There was no response to those letters.

Last Date Of Service:- past

Last Date For Response:- past

Case management hearing tomorrow 6/10/17

What Documents are listed in Box E2:[or in your form requesting the same?]

"A copy of the credit agreement, statements of account and notice of assignation will be produced in any defended process to follow hereon"

Is the claim for a Overdraft, credit card, loan account, HP Agreement, Catalogue or mobile phone debt Catalogue debt according to the claim

D5 what has the claimant said]:

I want the court to order the Respondent to pay me the sum of £685.35

from your knowledge: answer the following:

When did you enter into the original agreement before or after 2007? Allegedly 2013 but OC has also supplied a contract dated 2012.

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim.

Debt assigned, DCA taking court action, OC has stated in a letter recently to me after I requested information that "they are not in the process of initiating a claim against me however they do reserve their position in this regard"

Were you aware the account had been assigned – did you receive a Notice of Assignment?

No notice received, I requested the notice on 17/07/17 from both the claimant and their solicitor and they have yet to provide it, stating they are relying on the OC providing the requesting info and will forward this to me when they have it

Did you receive a Default Notice from the original creditor?

Same as above, not yet supplied

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

No, they had the wrong address for me as I done a legal house swap with a relative in 2014.

The claim forms were served in person and by sheer coincidence the Sherriff officer appear at my old address when I was visiting and my relative came and got me.

I did explain that this wasn't my residential address but took the claim forms anyway and then changed address with the court and claimant.

My relative says nothing has came in the post for me recently and anything that does gets returned to sender, marked not at this address.

When was your last payment:- unsure,

a statement from the creditor regarding the account number 9856Xxxx says my last (and only payment) was on 20/04/13.

However on the statement it shows a balance being transferred from another account and the statement of statements they supplied shows that no goods or services were purchased in 2013.

Why did you cease payments:- financial difficulties and family problems.

Was there a dispute with the original creditor that remains unresolved?

No

but there is now because they have not been able to provide information that I have requested and they also state in recent correspondence that a request was made for the balance of the 2012 agreement to be transferred to an Internet Bearing Credit (IBC) on 18/03/2010.

No idea what this even is but the agreement they provided with the account number mentioned on the claim was dated 26/03/13 and has a credit limit of £100.

The statement for the 2012 account shows £196.84 of interest being added and then the balance being transferred to the account the claimant mentions in the claim forms on the 30/03/13 yet the first thing on that statement shows the 1st statement date of 23/03/13 and says "balance transferred from account 2477XXXX"

It does look like the OC has been playing around with the statement of statements because some dates are a year out.

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan

?

No, not that I'm aware of although I might have done at the time, currently waiting on a DSAR getting returned from the OC

The defence submitted is not the one you guys use

however it's stating I don't owe the claimant money and they have failed to provide any information (agreement, default notice, notice of assignment etc).

Didn't realise you guys had this and wish I had discovered it earlier

however I was hoping you could shed some light on the regulations.

Would I be right to say that the creditor should have issued notice of default sums (CCA 86e) after 1st payment missed (most likely on the statement)

then if the second payment is missed they issue notice of sums in arrears (CCA 86C) with the FcA and a default notice (CCA 87/88)

Secondly they haven't complied with the CCA request I sent on 17/7/17 under section 78,

I made a request to the OC and one to the claimant,

they both got back saying they have passed the request to each other lol

have no idea who's dealing with it.

Last time I checked only the OC had cashed my £1 but the Claimant hasn't returned the £1 they got. I'll check with the post office just now to see if they cashed it yet

Have also realised I might need to send in that order for information to the court,

I imagine it will be okay taking this to the case management discussion

Oh and in the letter from the creditor it says they sold the debt on 18/10/2013 and claimant claims a default notice was issued on 17/10/2013

Oh I should also mention that the CCA request was done as soon as the claim was served,

I'm not sure if that applied to the claimant now as it was done after they raised an action

right firstly forget the original creditor

what they have or have not done and what they have or have not sent you

if they have you DO NOT disclose any information.

the claimant can only rely upon the documents THEY acquire, nothing else.

at the discussion I would simply state to the [when asked to speak!!] sheriff that

'the claimant has failed to provide any documents they claim to already hold as stated in box E2.

I have also sent then a CCA request which to date has been ignored

DONT talk to their rep before hand.

should be a walk over here

go read the other SPR cat threads in this forum.

dx

How did it go??

Dx

Sorry for the delay, it was a super busy weekend

Didn't go as well as I had hopped.

I should have pressed more about the information so far not being supplied.

Court was running late and they didn't appear to want a discussion as a hearing was ordered pretty quickly.

He said something about it being a hearing of proof.

They need to supply their evidence to me 28 days prior to the hearing which is 28/11/17.

I've to submit anything 14 days before.

Haven't been to court before and expected it to be in a closed room,

it wasn't and there was lots of people there and I don't feel I put my point across as I should have,

I was thrown off by him asking me questions rather than letting me speak.

Judge seemed to know that they had given me a contract with the wrong date despite their solicitor not mentioning it when he spoke, not sure how that was possible.

I said they haven't supplied any of the information they refer to in their claim or responded to the information request.

I didn't specifically say it was a CCA request thought and didn't realise this until after,

disappointed about this and think nerves got the better of me as I hate public speaking lol

Judge didn't specify their evidence,

I feel that I should maybe make a request to ensure I get what I'm looking for

but I'm also thinking that I should make a request for the claim to be dismissed

and then detail about them saying evidence will be produced at any defended action Hereon in.

I imagine both are done using the form 9G incidental orders?

Should I post what I used as my defence when I submitted it?

I stated in the defence that they have not responded to a CCA request

IMHO you don't need to do anything

lets await the claimants return by 28days

then we''ll act.

yes would be nice to see what you filed in form 4a D4/5 boxes please

^^^ action post 9 please

I'll Get everything uploaded tonight,

they have also sent their evidence

however they have dated this 5/10/17 (which was day before case management) and we received it on 13/10/17.

They have sent the contracted dated 26/03/13 again when the claim form says it's dated 18/03/13 and have included a notice of assignment dated 25/10/13 although the date isn't where it should be and the notice is missing dots (.)

and.....

sorry for the delay...

ive uploaded the evidence which i received from shoosmiths dated 05/10/17 which is dated 1 day before the case management discussion but received nearly a week after the case management discussion.

notice of assignment is there, which appears to be a reconstituted notice of assignment.

the defence that i submitted was just stating that i had not received any information,

they have not complied with a CCA request,

never received a default notice,

never received a notice of assignment.

no freeman/FMOL stuff.

first letter was sent to them in july when the claim form came,

the letter changed the address (they had old address)

asking for the agreement, terms and conditions and deed of assignment,

followed by another two similar letters.

no reply was received (other than one saying they will need to request this information from their client, who will need to request it from the OC)

until after i filed the response when they sent a contract which doesn't have the date they state in the claim.

i then sent them a further letter dated 05/09/17 requesting, the alleged agreement, default notice, notice of assignment, deed of assignment and full statement of the debt. they responded saying they refer me to their previous letter which said they need to request this from their client.

31/10/2017 is their deadline according to the court hearing order.

i was going to send them the same letter again requesting the information again but decided there is no point repeating myself as they are meant to be professionals

i should also mention that the claim is against my sister,

i'm down as her rep.

anxiety got the better of her on the day and i went to the case management discussion without her, which the court was fine with.

At the hearing I'll be stating that just saying and agreement has been assigned and producing a notice to say that it has been assigned does not prove legal assignment.

If that doesn't work then I'll go on to the fact that the OC or the Claimant hasn't complied with statutory regulations as they didn't issue a default notice and still can't provide one or prove they sent one.

The claim even shows the account was terminated and sold 12 days after a default notice was allegedly issued.

Any help on the statutory requirements regarding the claimant and statements and other regulations would help greatly

the letter i sent them dated 05/09/17 which was the last letter i sent

docs 1.pdf

so no statement of account from the claimant [to show how this debt came about]

and no default notice [to prove they sold it before the 14 days were up.

NOA is ok

agreement etc is ok

No statments or statement of accounts.

No default notice from claimant or OC.

Just going by what Shoosmith put on the claim form regarding default notice (which should be facts?)

We are also 100% certain the account credit was not used at all between the dates they state on the claim form

They haven't mentioned a default notice in their evidence either

well they wont

as its fatal to their claim:wink:

Should I consider sending anything to the court asking for the claim to be struck out if they don't send me the information I have requested as it states on the court hearing order or just wait for the hearing and go for it?

I'm going to be relying on case law for sight of the deed (van lynn developments vs pelias construction) should I include this in my evidence? Not really sure what else to submit as my evidence other than proof of postage for my requests and the letters I've sent them, it's not due till 14th November tho.

drop the deed twaddle!

its NOTICE of assignment and they supplied that

the deed is for the sheriff to mention if at all.

drop involving the original creditor

told you that earlier too

default notice - wont appear as the dates are wrong = unlawful termination/sale.

Not going to mention OC, didn't make any mention of them at the case management meeting.

I'm still a little confused about the notice of assignment. It's dated 25/10/13 but in the claim form Shoosmith claim that they purchased the debt on 29/10/13.

How can they send a notice of assignment 5 days BEFORE the assignment. The notice doesn't say we are going to sell your debt, it says the account was legally assigned.

Not going to mention OC, didn't make any mention of them at the case management meeting.

 

I'm still a little confused about the notice of assignment. It's dated 25/10/13 but in the claim form Shoosmith claim that they purchased the debt on 29/10/13.

 

How can they send a notice of assignment 5 days BEFORE the assignment. The notice doesn't say we are going to sell your debt, it says the account was legally assigned.

Irrelevant and will be treated as de minimis ..their particulars could be corrected but its hardly significant to their claim.

Andy

and still no default notice nor a breakdown of how the sums claimed have been accrued.

Okay then, probably not worth pointing out then.

Although the dots are also missing and grammar is important, always remember (let's eat grandpa compared to let's eat, grandpa.)

In the CCA request, the legislation states a statement of account. Would this be classed as a breakdown? E.g. How much is interest/charges?

No default notice yet, what's the chances of them showing up with a reconstituted one on the day?

With the date changed so it shows the account being terminated and sold after the 14 days and then claiming they made a mistake in their claim.

Have a feeling this is what they are going to pull.

They won't be able to prove they sent it tho because they didn't.

The time has lapsed for submitting their evidence but I'm starting to realise the court aren't as strict as what I thought they would be as the court didn't seem bothered that the date on the contact being different from what was put in the claim.

the sheriff is strict

they cant produce 'anything on the day'

they cant 'just make up' what docs they like.

the bottom line in truth is that all they have to produce is proff that the original creditor sent a Default notice

to date they've not, and again

they cant produce anything in court they have not previously disclosed in their evidence list.

stop panicking, its a speculative claim

hoping for a non contested default judgement

you caught them out by defending and not bending over as 85% of all claimants of the 800'000 claims issued every year do.

the sheriff will be none to pleased they stated quite clearly on the claimform they had xyz documents/info when it turns out the DONT.

oh and no the CCA statement of account is not a detailed breakdown