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Citation Received - Clydesdale bank Credit Card

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Hi Rory,

 

just to let you know that i went to Edinburgh Sheriff court today and the case has not been sisted.

 

It looks like despite the assurance contained within my letter they have not sisted the legal action.

 

I have managed to get an appointment with the CAB but i ned to wait until wednesday to see someone.

 

I'll keep you updated though.

 

Can i ask a question about the 12 working days they are allowed to produce a CCA.

 

What should i do after the 12 days have expired, should i write again or do i wait a while longer?

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The 12 working days are just until they are in default of providing the agreement.

Until they produce a copy of the agreement after this date they can not enforce the agreement.

 

As they have brought a claim against you they will have to produce the copy of the agreement to enforce the account anyway (it looks like they can't find the agreement).

 

After the 12 working days have expired you don't need to write to them again.

They are aware that they are in default.

 

just to let you know that i went to Edinburgh Sheriff court today and the case has not been sisted.

I'm not completely suprised. Often what these companies state and what they actually do are two very different things - although you never know it may be their intention to sist the case and they are just dragging their heels doing it.
I have managed to get an appointment with the CAB but i ned to wait until wednesday to see someone.

 

Who are you actually seeing.

Have they refered you to one of their debt advisors?

This is not what you need.

You need a solicitor.

 

A CAB Debt Advisor will probably just tell you to arrange to pay off the account

(although some are better than others and are actually aware of the law regarding consumer debts and the enforceability (or not as the case may be) of them).


HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Thanks Rory,

 

I'm seeing a Debt advisor,

as after explaining my problem they said that this is what i needed to do.

 

I'll cancel my appointment and get a solicitor.

 

I'm sorry, I'm getting in a real mess with everything at the moment as i'm really stressed about it all.

 

I'll try and get an appointment with a solicitor who deals with consumer debts as you suggest.

 

thanks again for your help

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I'm sorry, I'm getting in a real mess with everything at the moment as i'm really stressed about it all.

That's perfectly understandable. Just try and take it one step at a time.

 

Remember if you need advice or just some support then post on here and someone will give you a hand :)


HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Hi Rory,

 

just a quick update,

 

i've had some legal advice and it seems that i can lodge with the court either

a request for time to pay,

or my intention to defend.

 

If i choose the later i pay the fee and then i will have two weeks to produce my papers re defending the action.

 

The problem i have now is that i am still waiting for my CCA, and the other information i requested

from Yuill & Kyle in my recorded delivery letter sent on 1 November 2008 (the style you suggested).

 

As a result I don't really have anything to present as a defence.

 

Now it seems that if i dont lodge something with the courts on Friday (14 November).

The advice i have had is that if i want to preserve my position

i have to lodge my intention to defend the action and engage a solicitor to act on my behalf

(this is when i will start to incurr court costs etc).

 

HOWEVER, i have now received a letter from the banks solicitors (Jeremy Sutcliffe & Co),

stating that upon taking their clients instructions

they can confirm that any legal proceedings against me are currently on hold,

and they are to refrain from minuting to the court for Decree at this present time.

 

Their client has further advised that they are to await their further instructions in this instance.

 

I am cautious now as i think they have put things on hold because they have not complied with my CCA request

but if i do nothing it means that they could, at any time after 14 November

apply to the courts to grant them a minute of decree in absence, putting them in a win win situation.

 

Have you any idea if this is normal or are they using some underhand tactics to ensure

that i don't lodge an intention to defend and they can after that get a decree granted?

 

I've dug out all my statements and they go back 8 years

but i think ii've had the credit card a bit longer than that,

and i am going to apply to get any charges back,

but i'm not sure if i should trust them.

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As a result I don't really have anything to present as a defence.

This isn't quite true.

The lack of a credit agreement would be your defence.

This is a complete defence as if you raise the issue of the credit agreement

then without them producing a compliant one they will lose the claim against you.

 

The advice i have had is that if i want to preserve my position i have to lodge my intention to defend the action and engage a solicitor to act on my behalf (this is when i will start to incurr court costs etc).

Yes you must lodge your intention to defend.

Although this will cost you money you can claim this back against the pursuer when/if they lose.

 

i have now received a letter from the banks solicitors (Jeremy Sutcliffe & Co), stating that upon taking their clients instructions they can confirm that any legal proceedings against me are currently on hold, and they are to refrain from minuting to the court for Decree at this present time. Their client has further advised that they are to await their further instructions in this instance.

 

You need to check this with the court.

While it is probably true you should trust nothing they tell you unless the court confirms it.

 

I am cautious now as i think they have put things on hold because they have not complied with my CCA request but if i do nothing it means that they could, at any time after 14 November apply to the courts to grant them a minute of decree in absence, putting them in a win win situation.

 

 

They most certainly have put things on hold because of this.

You do need to ensure that no decree is granted in absence

(although the decree could be later recalled if it is granted in the first place it just complicates matters) s

o I would get that defence in as a belt and braces approach to make sure that they play fair.


HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Thanks again Rory,

 

Do you think the lack of a CCA will hold in my case as this is not an old debt,

(although i have had the card for a number of years)

 

would a sheriff be inclined to think that as i have used the card

ie earlier in the year,

i should pay the debt,

and as such i would then have court costs to pay as well.

 

I've checked my statements and they don't really owe me much in they way of charges

as until earlier this year there was no problem, so i can't really use that as leverage.

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Legally as it is a consumer credit agreement

it isn't purely a matter of whether you owe the money or not.

 

The crux of the matter is whether the agreement is enforceable.

 

Section 127(3) of the Consumer Credit Act (this is the section headed judicial control)

states that the court shall not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor or hirer.

 

So if they can not produce a compliant agreement

the judges hands are tied

in that he can not grant a decree against you

and has no other option but to rule in your favour.


HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Thanks again Rory,

 

Its not looking good,

as all the advice i've received from various solicitors

is that it is entirely up to me whether i lodge an "intention to defend" the action against me.

 

None of them so far see any advantage in pursuing the lack of CCA as a defence, and want me to decide.

 

The fees can get very costly up to £165 per day if they represent me in court

so i have to make sure i chose the right option.

 

Furthermore it seems that there are only a couple of Solicitors here in the capital that actually specialise in this are of law which i suppose is why they charge so much.

 

I'm distraught at all this as i just want the legal action to stop

and it seems it won't unless i pay a Solicitor (which at up to £165 per day, i can't afford to), and take a chance on winning.

 

What if they produce a signed CCA after i have lodged my intention to defend?

I'll get stung for all their legal costs as well as my own and still be in the mess i'm in.

 

The 30 day period for them to produce the CCA is up on 30 November too late for me to do anything then as well.

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Quick update,

 

just got some further legal advice

and this lawyer actually deals with these type of cases,

 

he says that it's okay not to lodge a defence as the strength of the letter from the banks solicitors

is such that i'm covered.

 

So that's helped me a bit.

 

i think i will however, write a letter to the courts explaining what is going on with my CCA request

and the lack of a response to date.

 

Hopefully this will be added to the papers and made available to the sheriff should a request to minute for decree be asked for.

 

It seems that if i lodge an intetion to defend

it sets off a whole chain of events that include a date for the actual hearing,

defence papers having to be lodged within 14 days

and appearances in court by solicitors.

 

All this is too costly for me and as i actually have a job i don't qualify for any legal aid.

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Why are the solicitors saying there is no advantage to pursuing the CCA? Surely, without a signed copy of the original agreement they cannot enforce the debt?

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Hi Underdog13,

 

the solicitors did not go into detail

they just said that it is not always the case that the debt becomes unenforceable if the CCA is unsigned.

 

I did not ask any further about it.

 

I was just looking to avoid having to pay any huge solicitor and court costs as i really do not have the means to do so,

which is why i'm in such a mess financially.

 

I want to wrtie my letter to the sheriff to ask if the contents could be placed with the papers just in case.

 

I don't suppose you have any suggestions as to how i could word it?

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the solicitors did not go into detail they just said that it is not always the case that the debt ibecomes unenforceable if the CCA is unsigned.

Yes but this is only if it is unsigned by the creditor and contains all the prescribed terms. The agreement must contain the necessary prescribed terms and be signed by the debtor.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Hi Pumpkin,

 

I'm still pretty new to all this,

so I wouldn't like to suggest how you word your letter.

 

Rory32 is the one for this I think; he has written some superb letters on other threads.

 

Best of luck with it all,

 

I'll keep subbing - keeping everything crossed for you:)

kind regards,

Underdog

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Hi Rory,

 

can you suggest a style letter for me to use to send to the court asking that it be taken into account

should a request for minute of decree in absence be lodged by the bank?

 

I have until 4pm today to lodge it with the court.

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Pumpkin,

as this is so urgent,

perhaps Rory would accept a PM from you (

sorry Rory if I'm wrong about that!).

 

If not perhaps you could PM some of the site team?

 

They should get their legal bods onto it, I would think.

 

Best of luck.

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Hello again,

 

i need to ask if anyone can tell me whether,

after making a request in terms of the Consumer Credit Act

and the 12+2 working days have passed

do they get a further 30 working days to come up with a signed CCA

or is it just 30 days.

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The 30 days that you are refering to are actually one calendar month

and used to apply to the commitance of a summary criminal offence in not supplying the copy of the agreement.

 

This offence was repealed earlier this year - it was never prosecuted anyway.

 

While in default of supplying the credit agreement (after the 12 working days)

they may not enforce the agreement.

If however at a later date they can produce a compliant copy of the agreement they can once again enforce the agreement.

 

That being said, if they can't find the agreement fairly quickly it usually means that they don't have it.


HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Thanks Rory,

 

I'm hoping they don't have one

as my original request was received on 14 October

and i've still not received anything.

Do i need to write to them after the expiry of a calender month?

 

Bearing in mind that as a result of my complaint,

that they raised legal action while i had made a request in terms of the Consumer Credit Act,

they have put on hold any legal action pending a response to my request in terms of the Consumer Credit Act,

and they need to hear from me within 8 weeks of them acting on my complaint.

 

If they cannot send me what i have requested in terms of the act, then what?

 

Do i write to them at that time?

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If they cannot send me what i have requested in terms of the act, then what? Do i write to them at that time?

 

Yes.

I would be looking for some sort of closure on the account.

 

if they can't produce the agreement then I would suggest that they write the account off as they have no way of enforcing it and you won't be paying it.


HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Hi rory,

 

while i am waiting for the 30 days to pass (which should be soon),

is it worth my while writing to reclaim some of the charges applied to the credit card or should i just leave things for the time being?

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I would leave things for the moment.

 

This thread might help you a bit when it comes to approaching them about not having a copy of the agreement

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/93884-wescot-rbofs-oh-dear.html


HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Thanks Again Rory,

 

you've been a great help.

 

Can i ask another question,

 

in your post (11), you drafted me a letter to ask for some productions which i did

and sent it off recorded delivery on 1 November 2008, to the banks agents asking for the information within 7 days.

 

I've still never received any reply to this letter either,

 

can i assume this is because everything is on hold while they deal with my request under the Consumer Credit Act?

 

Should i be looking to write to them again after the 30 days?

 

also,

can i ask did i've read your posts on the link you provided and you have not posted what the final outcome was, did everything go in your favour???

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I've still never received any reply to this letter either, can i assume this is because everything is on hold while they deal with my request under the Consumer Credit Act?

Probably as the copy of the agreement is the crux of the matter. Without this they have no case.

 

Should i be looking to write to them again after the 30 days?

How long has the case been sisted for?

 

can i ask did i've read your posts on the link you provided and you have not posted what the final outcome

Post 67 here. I didn't bother pushing to get the default removed as really it wasn't very important to me.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Hi

 

the initial date for response was 14 November,

however i was given a written undertaking that they would not apply for a minute of decree in absence because of my dispute.

 

The legal advice i was given was that there was no need to lodge an intent to defend on the strength of there undertaking.

 

I did however, write a letter to the sheriff to be placed with the papers should a minute of decree in absence be applied for,

stating that i was advised by the bank and their agents in writing that they would not be applying for a decree in absence,

and i explained that i was still waiting for informaiton in termns of the Consumer Credit Act

and that my dispute was lodged with the bank before they aplied for legal action etc.

 

it's been on hold since 14th November really.

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