OK that makes sense, thanks.

BTW my comments in post above to your amendments, the line @They weren't actually able to confirm whether and what balance was on the current account at the end, only that an overdraft and loans were consolidated" should be in red but isn't.

They weren't able to confirm whether there was an overdraft on it or not when closed, only that the debt sold was a consolidation of loans and overdraft. It's possible that I had a loan which consolidated other loans (including the 2001 one) and an overdraft, but if that's what happened then I don't know the details and so far at least, neither do cabot.

Do they need both a relevant CCA and proof of assignation chain to be successful in claiming for a debt, specifically a loan? (obviously they can't for the current account they're claiming for but I'm thinking of future cases and back up in this case if timebar were to fail)? You'd think if they could show the assignation chain they would have by now.

I will get those SAR's sent on Monday.

Actually I'm just thinking, if they don't have to respond for 40 days, which takes it beyond the proof date for this case, is it worth requesting it now and risking LLoyds digging even deeper and finding info that Cabot can then use in this case?

I mean, cabot obtained the CCA they lodged on the day before the last CMD,

so unless they lodge anything else before the proof,

they have all they are getting from Lloyds to date.

Given their laziness throughout the whole process (leaving contacting lloyds until the last minute before the CMD) they might not go back to LLoyds, but if LLoyds do more digging because I SAR them they could end up finding more info that helps cabot and I get ambushed with it again near the proof/the proof postponed.

It made me think that it's better sending the SARs after the proof has been decided, though I'm probably just overthinking things again

LLoyds have already confirmed that their loyalties lie with cabot by refusing to write to me with proof of the debt-selling dates they have, so I'd expect any info they find would be forwarded to cabot before me, especially if LLoyds are realising now that they gave cabot the wrong acc details when they sold it.

sar will prove or disprove time bar..me thinks all it is..

one last q..

all of these accounts were taken out whilst resident in Scotland?

LLoyds have already confirmed that their loyalties lie with cabot by refusing to write to me with proof of the debt-selling dates they have, so I'd expect any info they find would be forwarded to cabot before me, especially if LLoyds are realising now that they gave cabot the wrong acc details when they sold it.

doubt that's true

they wouldnt care. oneway or the other. they got paid and wrote it all off

OK great, I just felt that because they refused to write to me because of cabot now owning the debt, even just to say "you had this acc number and it was a current account closed on x date" that they were not wanting to step on cabot's toes.

I will get those sent on monday then.

Yes all loans and debts I ever had were taken out in scotland.

good brilliant.

forgetting literally everything you and I have written.

I would 99% suspect this is like most cabot Scottish claims here with shoos or nolans whereby they run to the English rules of 6yrs SB

so have automactically issued this claim to get in before that date regardless of the outcome to halt the SB clock..

...they always forget it Scotland or don't realise, and its 5yrs so 9/10 they are already too later then try to back peddle, divert away from the fact by using anything they can to overwhelm the judge/respondent, typically this is with a whole load of twaddle like statements etc

they hope the weight of their evidence clouds the real issue...its already SB/extinguished and dead in the water.

yours is looking the same

Yes it definitely looks that way that way.

OK that makes sense, thanks.

 

BTW my comments in post above to your amendments, the line @They weren't actually able to confirm whether and what balance was on the current account at the end, only that an overdraft and loans were consolidated" should be in red but isn't.

 

They weren't able to confirm whether there was an overdraft on it or not when closed, only that the debt sold was a consolidation of loans and overdraft. It's possible that I had a loan which consolidated other loans (including the 2001 one) and an overdraft, but if that's what happened then I don't know the details and so far at least, neither do cabot.

 

Do they need both a relevant CCA and proof of assignation chain to be successful in claiming for a debt, specifically a loan? (obviously they can't for the current account they're claiming for but I'm thinking of future cases and back up in this case if timebar were to fail)? You'd think if they could show the assignation chain they would have by now.

Can you confirm your thoughts on that bottom line please dx, just so I don't go in saying they can't win because the don't have CCA or assignation chain. Just so I don't look a fool by saying they must show both, if that's not correct.

I know timebar is the main argument but the more arguments for absolvitor I can give the better?

Well no

You are rubbishing their total claim

Dx are you happy for me to prepare and lodge the amendment as per your current draft?

I think you wanted me to hold off a bit but technically 10 days to lodge it ended on Saturday, which I would guess allows me to lodge it on the next business day being today.

I'm having to work late today so probably won't manage it, but I can take tomorrow morning off to prepare it and take it along to the court.

The court note after the CMD didn't actually mention a time for lodging it anyway and I'm sure I won't have any issue having it allowed since Shoos ambushed me with theirs on the morning of the last cmd (and only then because I went around asking which solicitor was there for Shoos).

Sorry to rush you, I know you spent a lot of time on it last week!

Phone the clerk and enquire

Yes tomorrow am would be good

Poss needs work but dont know till i x- ref every post to it

With regard to the amended plea by the claimant:

.

As a respondent i specifically make reference to the Simple Procedure Rules 2016 in so far as my understanding is that:

1.4(2)

The Sheriff must ensure that parties who are not represented, or parties who do not have legal representation, are not unfairly disadvantaged...

... i represent myself and are totally at a loss upon how to respond to such a claim & welcome any assistance the sheriff can give me.

1.6(9)

When appearing against a party who is not represented, or who is not legally represented, representatives must not take advntage of the party.

1.6(10)

When appearing against a party who is not represented, or who is not legally represented, representatives must help the court to allow that person to argue a case fairly.

..i expect the claimants' representative to employ the above.

..........

The Claimant is a well known Debt Buyer or debt collection Agency that purchases large debt portfolio 'En-Masse' for a discounted Pence to Pound reduced value.

These debt portfolios, be them direct from the Original Creditors or exchanged under sales between like Debt Buying Organisations, were placed for sale because the Original Creditor neither wished to litigate against their customer themselves due to bad publicity or are typically related to issues of enforceability under the consumer crediticon Act or are as a result of inflated sums due to penalties and or interest levied upon them that are unfair & unlawful under FCA regulations.

According to s.189 of the consumer credit Act 1974 when an assignee purchases debts [or otherwise acquires rights under a credit agreement] it also acquires certain obligations to the borrower including the duty to comply with CCA requirements, such as the rules on statements and notices and other post-contractual information. The assignee becomes the creditor under the agreement, thereby ensuring that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

1.As detailed by the respondent at the CMD of DATE, the account number quoted relates to a bank account [sort code xx-xx-xx account number xxxxxxxx] which i admit i did have with Lloyds bank.

2. Having checked with Lloyds numerous times since the original court claim dated xxxx, they have confirm the number was a bank account and the account was closed by Lloyds on 25th November 2007. It is unclear when/who owned the account until cabot in 2014

3. The claimant in their SPC Form 9d Evidence list has failed to produce any documentation specifically quoting the litigated account number, namely - the signed agreement, the default notice nor any Notice of Assignments showing the chain of ownership until 31st July 2014. all of which they claimed to hold in their original SPC Form 3a some 2 months ago.

4. The direct debit Mandate produced as document C1 relates to the litigated bank account in so far as it being the funding source of another account number.

5.The claimants evidenced documents C5/6/7 relate to some statements that show random payments resuming from 13/11/2014. The claimant has failed to produced any evidence of payments prior to that period.

6. I aver that the account was already statute barred and extinguished pursuant to the provisions of The Prescription and Limitation (Scotland) Act 1973, Section 6. A period of atleast 5yrs of no payments had already elapsed by 13/11/2014.

7.If, which is denied, the claimant contends that the respondent is in breach of the alleged contract, in excess of 5 years had elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant. under Scottish laws the debt is now extinguished

.

8. The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied.

9. I respectfully request that the sheriff issues a Decree of Absolvitor with expenses in favour of the respondent.

That's fantastic dx, thank you!

I've only had a quick look at it but I'll go over it in detail once I've done the school run.

Thanks

Hi dx,

just a couple of things I wanted to check with you before I put this into the application to amend form.

-Do I have to amend in the same format as the claimant did, with strikethroughs for parts deleted from the original response etc, or can I just submit the new paragraph as a paper apart fresh "D4", ie without highlighting/striking through exactly where the changes have been made?

- in line 3 you say that they have failed to produce "signed agreement, the default notice nor any statements of account, all of which they claim to hold..." but items c5 and c6 do appear to be statements to account in respect of "original account number" end 896, which is the account they are suing for.

Shall I take that part out or are you saying that c5 and c6 don't constitute statements to account? ie it appears that those items do relate to the account being litigated, so unless you disagree line "5." would have to come out aswell?

So to clarify, they are suing for account ending 896, the current acc, and those statements to account mention that current account as being what the payments are towards, which is why I'm querying it.

- do i also need to amend section d2 to add in "3. The claim is time-barred"?

Also, is there any need for me to aver Prime credit 1 didn't exist in 2007? I thought it would probably be sufficient to just produce the printouts I have from the company registration website that show it wasn't around until 23rd Aug 2011?

Once again thanks for your help, I know it must have taken a long time to prepare these amendments.

Here's what I have as the "reason for why these amendments should be made" on the application to amend -

"The claimant submitted an application to amend on 11th September 2018 and did not provide the respondent with intimation until 40 minutes before the continued Case Management Discussion on 12th September 2018. As a result of the claimant's amendments and the respondent's investigation and consideration thereof, the respondent requires to amend the response form."

Just spoke to the sheriff court and although there is no mention in the court note I received of me being allowed to amend, the last sheriff has made a note to that effect so hopefully it won't be opposed or refused.

I asked which sheriff would be hearing the proof on the 12th Oct and it's the original sheriff who was annoyed at Shoos and demanded that they appear in person at a continued CMD, so that's positive.

Last question I promise - should I also add in an averment along the lines of -

"Believed and averred that than any accounts or alleged debts the respondent with Lloyds bank (the "original creditor") remained in their ownership until 12th September 2012."

So that I can give evidence on the contents of those phonecalls with Lloyds, with it being such an important point on timebar?

OK sorry I lied

YOu say in the amendments that the account in question has been confirmed by LLoyds as a bank account - is it ok for me to specify that they confirmed it was a current account?

I've drawn up the amendments as per your list this morning and I have also added in a couple of averments that I thought necessary to allow me to give evidence about my calls with Lloyds.

I'm a bit worried ( I know, I worry too much!) that some of the details I am giving them there will prompt them to do further investigation with Lloyds and possibly glean further information that allows them to improve their case in advance proof, possibly with further amendment and a request to postpone the proof?

On that basis, if there is anything there that you think I can leave out without preventing me from giving evidence on it then please let me know and I'll take it out. I just don't want the penny to drop for them in advance of the proof, if with less detail they would still lose (which I am guessing is what the last sheriff was alluding to when he said "be careful what you wish for" when I wanted permission to amend.

Here are my proposed amendments.

D1 (Amendments in Italics).

With regard to the amended plea by the claimant:

.

As a respondent i specifically make reference to the Simple Procedure Rules 2016 in so far as my understanding is that:

1.4(2)

The Sheriff must ensure that parties who are not represented, or parties who do not have legal representation, are not unfairly disadvantaged...

... i represent myself and are totally at a loss upon how to respond to such a claim & welcome any assistance the sheriff can give me.

1.6(9)

When appearing against a party who is not represented, or who is not legally represented, representatives must not take advntage of the party.

1.6(10)

When appearing against a party who is not represented, or who is not legally represented, representatives must help the court to allow that person to argue a case fairly.

..i expect the claimants' representative to employ the above.

..........

The Claimant is a well known Debt Buyer or debt collection Agency that purchases large debt portfolio 'En-Masse' for a discounted Pence to Pound reduced value.

These debt portfolios, be them direct from the Original Creditors or exchanged under sales between like Debt Buying Organisations, were placed for sale because the Original Creditor neither wished to litigate against their customer themselves due to bad publicity or are typically related to issues of enforceability under the consumer crediticon Act or are as a result of inflated sums due to penalties and or interest levied upon them that are unfair & unlawful under FCA regulations.

According to s.189 of the consumer credit Act 1974 when an assignee purchases debts [or otherwise acquires rights under a credit agreement] it also acquires certain obligations to the borrower including the duty to comply with CCA requirements, such as the rules on statements and notices and other post-contractual information. The assignee becomes the creditor under the agreement, thereby ensuring that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

1. I do not recall having entered into a contract with Prime Credit 1 sarl or the claimant under s189 of The Consumer Credit Act.

2. I have never held a loan account numbered 30100100630896.

3.As detailed by the respondent at the Case Management Discussion of 12th September 2018, the account number being claimed for relates to a bank current account (sort code 301001, account number 00630896) which I admit to having held with Lloyds bank.

4. Having checked with Lloyds bank numerous times since the original court claim lodged on 12th June 2018, they have confirmed that said account was closed by Lloyds on 25th November 2007.

5. The claimant in their SPC Form 9d Evidence list has failed to produce the relevant documentation specifically quoting the litigated account number, namely the signed agreement and default notice, both of which they claimed to hold in their original SPC Form 3a when the claim was lodged over 3 months ago.

6. The direct debit Mandate produced as document C1 relates to the litigated bank account only in so far as it being the funding source of payments to another account number.

7. It is believed and averred that any accounts or alleged debts the respondent had with Lloyds bank (the “original creditor” as averred by the claimant) remained in their ownership until at least 12th September 2012.

8. I aver that the account is statute barred and extinguished pursuant to the provisions of The Prescription and Limitation (Scotland) Act 1973, Section 6

9. If, which is denied, the claimant contends that the respondent is in breach of the alleged contract with Lloyds Bank, in excess of 5 years had elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant. Under Scottish law the debt is now extinguished.

.

10. The Claimant's claim to be entitled to payment of £3735.95 or any other sum, or relief of any kind is denied.

11. I respectfully request that the sheriff issues a Decree of Absolvitor with expenses in favour of the respondent.

The Respondent puts the Claimant to strict proof to provide under the Consumer Credit Act the required documents to legally be able to enforce and bring this claim to court namely:

The Signed Consumer Credit Agreement

The Notice Of Assignment

The Default Notice Issued By The Original Creditor Under CCA 1974 Section 87/8

A detailed statement of the account and how, with specific reference toward additional interest added because of late/no payment, and any additional penalty fees or interest added, they have arrived at the balance now claimed.

The court will be aware that penalty charges and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 and The Office of Fair Trading v Abbey National PLC and others (2009).

I will contend at any hearing that such charges are unfair in their entirety.

Amendments in Italics).

1. The respondent is not aware of any contract with Prime Credit or the claimant under the Consumer Credit Act that would give rise to a legitimate claim to payment form the respondent.

2. The claimant has not produced the required documentation under the Consumer Credit Act to demonstrate any legal entitlement to enforce and bring this claim to court.

3. In any event the claimant’s case is statute barred and extinguished pursuant to the provisions of The Prescription and Limitation (Scotland) Act 1973, Section 6.

Damn, the italics aren't showing up on that post, but basically points 3-11 in section D1 are new and point 3 in section D2 is new.

post 134 now

forget the rest...you mention

don't go there, less is more.

OK thanks, I'll take the rest out.

Do you agree with me about not saying they haven't produced statements of acc, since those lodged do seem to relate to the account they're claiming for?

Sorry dx, but in relation to your amendment number 2, I don't this is correct -

"Having checked with Lloyds bank numerous times since the original court claim lodged on 12th June 2018, they have confirmed that said account was closed by Lloyds on 25th November 2007. The account was subsequently sold soon after to Apex Credit Management, whom appear to be something to do with Prime Credit and/or the Cabot Group."

That is what they are saying but our understanding from LLoyds is that they didn't sell anything until Sep 2012 when they sold to cabot ( so not soon after and not to Apex), who then sold to Apex in 2013? Should I say instead "which was subsequently sold to the claimant in 2012" or just take that line out altogether?

Well just put.....2007. It is unclear when/who owned the account until cabot in 2014

HI dx,

sorry if I'm getting confused, but is that not admitting their version of events about assignation in 2007 when we have evidence from LLoyds (4 of their employees) that they owned it until they sold to cabot in 2013?

Their employees were all pretty clear about that and me telling the court about those conversations would further support the lack of proof of assignation in 2007 by the claimant.

Does it not help my case even more if LLoyds held the account(s) until they were all time-barred anyway as it would show that Cabot never had a right of claim, having bought the accs once time barred.

If not putting in the "Lloyds owned it until 2012" line then saying nothing would be better than agreeing with their 2007 averment which we know can't possibly be true anyway as Prime Credit didn't exist in 2007.

Apologies for the too and fro.

you don't have it WRITING , neither do they.

don't add to their speculation.

OK I see where you're coming from,

can i still lead evidence on it verbally at the proof or best not to?

In the absence of their written evidence on it, my verbal evidence from LLoyds employees is all the court will have in terms of a timeline (unless they produce new evidence/a witness to say otherwise)

so despite being second hand, it supports the idea that they don't have a clue about their claim and I've been able to get more info in a few calls than they have from their own records?

I'll leave it out entirely from the amendments and get it along to the court/intimated to shoos.

You dont need too lead

Just go with it

Perfect, off to court now, i honestly can't thank you enough for your efforts (and patience!)

Hi guys,

today is the last day for me to produce evidence and I was thinking of lodging the following documents showing the Prime Credit 1 sarl wasn't around in 2007.

I'll go ahead and lodge these this morning unless you guys tell me otherwise.

Thanks

List of productions.pdf

I'll post up the amendment and list as lodged later today aswell.

not sure really cant hurt I suppose

see 2011

https://www.cabotcm.com/en/discover-ccm/history/

If nothing else, it's further evidence that Cabot have their facts wrong and supports the idea that they are just fishing.

Interesting re Apex, though I suppose noone is mentioning them except the staff at Lloyds, who say Cabot sold it to Apex in 2013.

I'm bamboozled by which company owned who and when. But then I suppose that's mostly the point with these things lol.

I cant find a link between apex and prime

though if you remember the other threads I pointed too earlier, it appears there is.

which is why i'm sort of saying, on the whole assignment thing...don't go there at all..

IF it comes up, then I think you are quite within your remit to point out its a minefield

that even the claimant themselves have not produced a proper chain, and 'this' the docs you are thinking of introducing [with copies taken with you ..3 of each] is to date your musings.

pers I don't think it will come up at all.

but I have done this twice before at hearings and got good results.