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About davie_falkirk

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  1. Just called them to discuss. They conceded that there had been a mistake and that the debt was statue barred and they would be closing their account. Result
  2. Thanks folks. I contacted StepChange today and confirmed what I already knew - they have no record of any dealings with me or anybody at my address. Unfortunately this debt is still showing on my CRF which is why I'm keen to get this dealt with. I'll let you know how I get on...
  3. Hi all, I'm being chased by Cabot / Marlin for an old credit card debt (originally an egg card). The amount is in excess of £3500 however I know for a fact that the debt is statue barred because I fell into arrears with all of my creditors in 2008/2009 after being made redundant and haven't made any payments since then. I had six credit cards back then with total debts of £30k+ and managed to get rid of five of them down the CCA route. One took me to court and eventually conceded on a technical point and two were eventually statute barred due to the time it took the DCAs to get their act together. All that remains is Cabot / Marlin. I sent them the standard statue barred template a few days ago and they responded two days later with a letter insisting that the account cannot be statute barred because the statement of account shows payments as recently as 2014. This is news to me because as I said I know that I haven't ever given them any money and haven't acknowledged any debts since 2008/2009. They included a "copy" of the statement account showing numerous payments from 2011 - 2014. This document has to be fake in an attempt to make it look like the debt is still active. The original account number doesn't match my original credit card and the opening balance is the same as the closing balance?! I'm wondering if anyone has any advice on how to proceed? My feeling is that I will need legal advice and take them to court to get this cleared off my record once and for all. Documents attached. Thanks in advance. davie_falkirk
  4. Are there any active moderators on this site? I've tried emailing the webmaster through the contact page and sending PM's to a couple of mods to no avail.
  5. If that's all they have, then they don't stand a chance IMO - but you need to defend it properly.
  6. Further update - I have received consultancy from a commercial solicitor in Edinburgh to help me tighten up some of the technical points of my defence, though I still ultimately wrote the defence adjustments and Rule 22 Note myself and will maintain my status as party litigant when dealing with the court. Continued Options Hearing was today, case was simply scheduled for a diet of debate given that both sides have Rule 22 Notes to be dealt with. This will happen mid-December. Back to my solicitor now for further advice on attacking the Pursuer's Rule 22 Note - which IMO looks rather weak
  7. Hi Andy, I'm pretty sure that it will be 3 "working" days, I just don't know whether I need to post it today to arrive Thursday 20th therefore allowing 3 COMPLETE working days i.e. 21st, 24th & 25th prior to the hearing on the 26th, or if I can post it tomorrow to arrive on the 21st, and still count the 21st as one of the 3 days. Cheers, David
  8. Hi all, Hopefully there will be some night owls still logged on who could answer this for me... I have a continued Options Hearing next Wednesday (26/10/11) in an Ordinary Cause action. The exact wording of Rule 22 of the Ordinary Cause Rules is as follows: I'm confused as to when is the latest that I can provide the other side with a copy of my rule 22 note. To my way of thinking, 3 (working) days before Wednesday 26th would be Friday 21st. Therefore as long as I lodge the rule 22 at the court on Thursday 20th and post a copy by Special Delivery to arrive at the other side on Friday 21st, I will have complied with the above I'm just concerned that in practise you are expected to provide the other side with the rule 22 note in sufficient time to allow 3 full working days prior to the hearing, i.e. not counting the day that it arrives. Can anyone clarify this for me? Cheers, David
  9. Quick update - I was a day late with my defence adjustments because I thought they had to be lodged with the court rather than the other side. At my Options hearing I was successful in getting my adjustments included in the record (seems quite commonplace for documents to be submitted late having listened to some of the other cases) and the hearing has been continued for four weeks to allow the other side a proper chance to respond. I also have two more weeks to make further adjustments. I have decided to seek proper legal advice now having consulted with a friend off the record and also with an agency solicitor, and have been given the name of a solicitor in Edinburgh who is very good on technical defences.
  10. Apologies again for the lack of links to my pictures on photobucket in my first post, I did have them all in but had to take them out due to my post count. If an admin could help me sort them I would be much obliged. OK so I submitted my defence on time, and today received a copy First Inventory of Productions and and a First Note of Adjustments for Pursuers. I have about a month to respond and I assume I also need to lodge my own Inventory of Productions with the court prior to the deadline for submitting adjustments. I have a further week for lodging preliminary pleas and the Options hearing is a week after that. They are taking a very hard line over the whole electronic signature issue which I knew they would as they pointed to that in the initial exchange of letters before it went to court. I think there is a chink in their armour though as they have yet again failed to produce a copy of MY electronic signature, there are pages missing from the supposed copy of the CCA that they have submitted in their Inventory of Productions (basically the same documents I received in response to my s78 request) which I will quote below to save you scanning for it in my length first post: I assume that they will now not be able to amend this or produce in court the complete document showing my electronic signature after having lodged the incomplete document in their Inventory of Productions? Their Adjustments are pretty predictable, lots of legal speak and latin terms. They are denying my points and expanding on their own based on my defence. My defence is that the agreement is not properly executed (though clearly I will need to expand this now to point out that they have lodged a partial document in their Inventory of Productions) and that due to financial difficulties I made the perfectly legal choice to validate whether or not my current debts were in fact legally enforceable prior to making any further payments. My pleas in law were, in short: 1. The initial writ did not contain details of the regulated agreement as required by the "Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009". 2. MBNA failed to perform due diligence as a careful lender prior to making credit available to me. 3. That the agreement was not properly executed, although I have not yet expanded on my points above as to why I feel the CCA1974 still requires a proper signature and the ECO only allowed for digital transmission of the proper signature. They have denied my point about the lack of details of the regulated agreement in the initial writ although they have massively expanded on the description of the agreement in the first adjustment, which I think in itself shows that this level of detail is missing from the initial writ. My worry as a layman is that the adjustments are effectively absorbed into the initial writ and that when the case appears before the court they will review only the finished article as it were. They have dismissed my point about due diligence as irrelevant, and have attacked my claim that the agreement is not properly regulated by averring that I am attempting to misuse the CCA1974 to avoid repayment. I think they have also shot themselves in the foot by stating that I took the loan out with no intention of repaying it, despite previously admitting that I made payments to the account for over 2 years. I know that I will need to expand my arguments however I will try to keep things nice and simple wherever I can, that seems to be the winning formula which other successful caggers have used in the past when cases have gone to court.
  11. Bumping in the hope of some advice, I've submitted notice of my intention to defend and have until Thursday to submit my defence. Options hearing is at the end of September.
  12. Not sure why the formatting is so messed up! It looked ok before I submitted the post.
  13. Hi all, I've been a long time follower of this forum and dipped in previously in 2009 when I started actively dealing with the DCAs that I had chasing me. I'm now a bit further down the road and would like to start a new thread to discuss my options and get some input from others who have been in my position before. Background In late 2008 I started having financial difficulties. I had unwisely tried to juggle my credit card debt by repeatedly transferring the balances to new deals from competing providers to take advantage of 0% interest periods and low introductory monthly repayment offers. This had worked initially because I had cleared all of the debt from my existing cards onto the 3 new cards, one of which was the MBNA account in question. As a result of two missed payments to one of the cards, which happened when the statements arrived AFTER the due date, I found myself in the position that my credit rating had been damaged. The next time I tried to obtain a new credit card deal in order to transfer the balance from an existing card which was reaching the end of the 0% / low monthly repayment period I found that I was unable to do so as my application was rejected. The result of this was that within a matter of months my monthly payments snowballed on all 3 cards. Initially I tried to keep up with the payments by making cash withdrawals from my 3 original cards but very soon I had reached the limit on those as well, but had done little more than double my outstanding debt. At this point it very quickly became a choice between: paying the mortgage, buying food for the house and fuel to get to work or keeping up with these payments, which by now were crippling due to owing monthly payments for my existing cards again on top of the 3 consolidation cards. I therefore stopped the monthly payments to all of the credit cards. For the next few months I stuck my head in the sand and did nothing. I felt deeply ashamed at the position I had gotten into having never defaulted on a payment in my life. In mid 2009 the threatening letters and phone calls from the credit card companies and debt collection agencies were becoming unbearable and I decided to take stock and sort everything out. I initially looked at dealing with a consolidation service in an effort to pay back the debts over a longer period however by this stage I had been made redundant from my job and had no income to speak of. I started reading forums such as CAG and decided that the best course of action at this point was to validate each of the debts and confirm that they were indeed legally enforceable before making any further payments or entering into any repayment agreements. To begin with it was purely to buy me some time but I realised that if I saw it through I might end up reducing some of what I owed or at the very least being in a position to negotiate payments that I could actually afford. MBNA Case At this time DLC were acting on behalf of Hillesden Securities Ltd (who had bought the original debt from MBNA) and I wrote to DLC at the beginning of May 2009: I received the letter below back from HS a fortnight later: (I did try to post this as a link but my post count isn't high enough. To view the pics please go to the Photobucket site and search for user "davie_falkirk2") I responded at the start of June 2009: HS replied a few days later acknowledging receipt of my letter and advising that they would respond in due course. I then received this reply a few days after that: (I did try to post this as a link but my post count isn't high enough. To view the pics please go to the Photobucket site and search for user "davie_falkirk2") At the end of June 2009 I received the following letter from HS: (I did try to post this as a link but my post count isn't high enough. To view the pics please go to the Photobucket site and search for user "davie_falkirk2") This letter was accompanied by what looked like all previous statements and default notices on the account. There was also the following document claiming to be the CCA (1 x double sided sheet and 1 x single sheet - more on this later!) with the HS account number hand written in the top right corner and the MBNA account number hand written above the title, with another typed reference number on the left which I didn't recognise. It is titled as a CCA and claims to contain sections 1-3 of the terms and conditions (I was also sent a full copy of the CURRENT terms & conditions which is also posted below). There appears to be at least two pages missing from the CCA; I have seen other people post similar documents from MBNA and mine appears to be incomplete. The first sheet is double sided yet comparing it with the full T&Cs shows that it jumps from section 2(b) at the bottom of the front page to midway through section 3(a) on the back, missing out 2© - 2(g). It then jumps from the heading: "Your right to cancel" at the bottom of the back page to the box which should confirm my digital signature at the top of the 2nd sheet. As you can see it therefore doesn't show any form of consent on my part to agreeing with the terms, digital or otherwise: (I did try to post this as a link but my post count isn't high enough. To view the pics please go to the Photobucket site and search for user "davie_falkirk2") Here are the terms & conditions that were sent at the same time, note the different APR shown compared to the CCA: (I did try to post this as a link but my post count isn't high enough. To view the pics please go to the Photobucket site and search for user "davie_falkirk2") As mentioned earlier, also enclosed with the above were copies of previous monthly statements from MBNA dating from August 2006 showing the initial balance transfer and transfer fee then subsequent statements showing the minimum monthly repayments of £5 under the terms of the 1 year interest free period for balance transfers. A second balance transfer was made in January 2007. The minimum monthly repayments continued until August 2007 when the 1 year interest free period expired. As explained above I had been unable to transfer this debt to a new deal with a different provider and had no choice but to start paying the full interest on the balance. The statement from September 2007 shows a monthly interest rate of 1.2408% which indeed matches the APR of 15.9% shown on the CCA but not the rate of 34.9% shown on the terms and conditions above. Having stopped making payments in August 2008 the minimum payment had increased to almost £600 by December 2008. The APR had increased to ~28% as the base rate had gone up significantly by then. It is also worth noting that the monthly interest rate shown on the most recent statement provided (dated March 2009) is 2.5292%. This works out to an APR of 34.9% which is the interest figure quoted in the terms and conditions above. This confirms that that the T&Cs provided do not relate to any agreement signed by me in 2006, as these terms and conditions clearly date from 2009 when the base rate was much higher. This is despite the fact that the cover letter clearly states that the enclosed documentation was in response to my requests for original agreements and related documents. I responded with the following letter at the start of July 2009: HS responded with the following at the start of August 2009: (I did try to post this as a link but my post count isn't high enough. To view the pics please go to the Photobucket site and search for user "davie_falkirk2") Enclosed was a printout from the OFT showing details of the credit license held by MBNA valid on the date of the credit agreement relating to this account. As you can see the letter claims that under the terms of the Electronic Communications Order 2004 which came into effect on 31st December 2004, the CCA1974 was changed and it was no longer a legal requirement to obtain a signed credit card agreement, that an electronic agreement was sufficient. Having previously notified HS that I considered the account to be in dispute and unenforceable without the original signed credit agreement I decided to cease all communications until such time that they either produced the original signed agreement or until they commenced court proceedings against me, at which time I would set forward the arguments as above in order to request that the court either declare that the account is unenforceable or issue an order to the claimant requiring them to provide the original signed agreement containing the prescribed terms with all of the terms and conditions within a reasonable time frame. I hadn't heard anything for a long time other than the usual threat-o-grams until yesterday when I received a "Form 05" citation from the Sheriff Court requiring that I either admit the claim and repay the money owed, admit the claim and apply for a time to pay direction or time order, or pay the court fee of £80 and lodge a notice of intention to defend (Form 07) with the court and the Pursuer. I was worried at first because the application for the citation was dated 2 weeks prior to the date that I was served, but the date of service and date of expiry of period of notice have both been scored out and new dates handwritten in. I thought that this might have been an attempt to trick me into missing the deadline for responding so I phoned the court and they advised that I have 21 days to respond from the date of being served not 21 days from the date the citation was issued. I think I'll still try to get my response in before the original date though. I've had a good read through both this site and several others and the overwhelming opinion seems to be that a "tick" on the online CCA is indeed sufficient to comply with the CCA1974 and the CCA would be enforceable assuming all of the prescribed terms are also present. What I have not been able to find is any confirmation of whether this has been argued or tested in court. Having spent hours going over my notes and reading up since I received the citation, I think my defense will be as follows: * MBNA did not perform due diligence as a careful lender prior to making credit available to me. My current account was already overdrawn by a significant amount, I had existing credit with rival companies on 3 credit cards in excess of £15k and I had recently remortgaged my property and used most of the equity on my house to clear previous credit card debts on my existing cards. * They have not supplied the signed agreement when applying for the citation or serving me with the citation despite referring to the agreement in their argument. * The Electronic Communications Order 2004 did not affect the fact that s.61.1(a) of the CCA1974 still requires that a properly executed agreement be signed by the debtor and creditor. It allows for digital transmission of the document in the form of a fax or scanning it and sending via email. It does not hold that a tick box on a web page can be considered as a valid means of signing the document. The CCA1974 does not define what the prescribed form of the signature must be, however I would argue that under the terms of the CCA1974 a written signature is still required and the changes under ECO2004 only allow for digital transmission of the signed document rather than negating the need for a written signature. * The tick on the page is nothing more than a picture; the true electronic signature is the conversion of the submitted webpage into a digital database entry or electronic mail or some other form of digital storage in which a record can be kept of when that electronic signature was digitally transmitted and from which source IP address it originated from. It would also need to be associated with some form of identifying information unique to the individual submitting the electronic signature. * A picture of a tick does not prove that I accepted the terms of the agreement. Where is the log of the IP address and digital track? There are many court cases dealing with illegal downloads at the moment and the key evidence in these cases is some form of proof that the electronic activity originated from the person accused of downloading copyrighted material. Otherwise there is no case. The same should apply here with regards to verification of the electronic signature on the agreement. * I would therefore argue that the onus is on the creditor to prove that the electronic signature was indeed submitted by me and that this document has not simply been generated for the purposes of attempting to satisfy the terms of the act. * This is why I believe there is a valid argument that the changes to the cca74 do NOT give any strength or validity to electronic signatures in the form shown here. * EU directive 1999/93/EC indicated a distinction between electronic signatures and advanced electronic signatures, and also set out a framework for electronic signatures. Much of this was incorporated into the 2002 regulations (which ones?) and the ECO2004 From 1999/93/EC: * How exactly does a picture of a tick in any way provide authentication? * Annex IV of the above directive goes on to establish criteria for secure signature verification. I would argue that the credit card companies have been ill-advised or have simply cut-corners by assuming that a tickbox would provide sufficient means of validating and authenticating the CCA. * ANNEX IV of the same directive: * The above taken into consideration along with the text in the Electronic Communications Order 2004 shows that a picture of a tick is NOT sufficient means of establishing identity and consent via a digital signature. From ECO2004: I am quite keen to fight this action however obviously I would welcome any advice or suggestions from more experienced forum members. I still have a lot of work to do and my biggest concern at the moment is getting things done in the right order; responding to the citation, submitting my defense, requesting documents from the other side etc. I'm also quite worried about the differences between Scottish and English law wrt CCA and would especially welcome any advice in this area. The same goes for Civil Procedures. I might be able to apply for legal aid but its unlikely that I will get sufficient help and will probably be going to court on my own. DF.
  14. Update... Received a standard threat letter on 1st June which must have crossed in the post with my above letter, informing me that the account has now been passed to the Halifax Collections and Recoveries Legal section to commence a court action for payment. I responded on 4th June with a fob off letter and copies of the CCA requests and told them I had no wish to enter into further discussion until the dispute was resolved. I then received this letter on 8th July 2009: Seems to me they are contradicting themselves there; they don't need a copy of the true signed agreement in order to enforce the agreement but they won't be enforcing it until they locate it Also I'm interested in any opinions on the final paragraph with regards to the contract still having legal effect in the event that they cannot get an enforcement order from the court.
  15. I went with this hybrid letter, combining what I thought were the best points from the ones I had looked at above:
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