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Hi hope someone out there can give me some advice .I recived a writ from rbs regarding 15k unscured loan and 1.5k overdraft .I have been in a dmp for 2 years but recently reduced payments rbs not accepting new offer and have now started legal action at glasgow sherriff court.I filled in form 07(nid) and returned to court i am looking for some help in drafting a defence.I sent a cca request on 17/12/08 it was recieved on 24/12/08 no reply yet but i had asked for it verbally about 5 weeks before and they eventually admitted they had lost it. When i took the loan originally i was forced to take their ppi(which i got cancelled 2 years ago but no refund)also i was never given a copy of the agreement.Any advice would be appreciated thanks

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Hi Leedoe, and welcome to the CAG forums...I'll move to the 'Scotland' debt forum for you where you should hopefully get some more comment / advice

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Hi hope someone out there can give me some advice .I recived a writ from rbs regarding 15k unscured loan and 1.5k overdraft .I have been in a dmp for 2 years but recently reduced payments rbs not accepting new offer and have now started legal action at glasgow sherriff court.I filled in form 07(nid) and returned to court i am looking for some help in drafting a defence.I sent a cca request on 17/12/08 it was recieved on 24/12/08 no reply yet but i had asked for it verbally about 5 weeks before and they eventually admitted they had lost it. When i took the loan originally i was forced to take their ppi(which i got cancelled 2 years ago but no refund)also i was never given a copy of the agreement.Any advice would be appreciated thanks

Hi Leedoe, i take it you are still paying RBS through DMP ?. When you requested CCA from RBS, legally they have 12 days +2 to supply CCA, which they have not done, there are template letters on this site to copy, the first letter requesting the CCA, which is advised to be sent by first class recorded delivery, with a postal order for £1.00, and dont sign the letter, there is a follow up letter after the time is up, i advise you to look at the letters, it looks for now that the debt is unenforcable, unless the bank produces a valid CCA, keep on this site and you will get the full advice you need to sort out the bank, im still learning and there are other site members with far more experiance.:)

Edited by blueda
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Thanks blueda what i now need to know is does my defence need to be in by a certain time i put my NID in on 5/01/09 also i would appreciate some help in constructing a defence if anyone can help

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I dont see this going to court, especially if you use the information available on this site, ive been threatened with court action before and the nearest it ever got was one time in 2003 when the DMP i was with was found to be crooked and RBS had not been payed for a time,result a Kilmarnock sheriff court decree on my credit file. They need a valid CCA on the account to do this. Im going to contact a Platinum site member to visit this thread and give you the further advice you need.

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http:www.consumeractiongroup.co.uk/forum/letter-templates/146154-creditors-dcas-letter-templates.html

 

Above is the link to the letter templates listed in alphabet order, letter N is the DCCA request and other letters, keep visiting this site and keep in touch.

Edited by blueda
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Leedoe, regarding the PPI, many of these policys have been mis-sold as they often do not cover the customer ie if you are self employed, you may be entitled to a refund plus interest if you follow the guidlines. It is a bit quiet on this forum today, it is uasually busier. Any way dont panic as the way i see it the bank does not have a case for letting this go to court.:)

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leedoe what does the initial writ state?

 

i had asked for it verbally about 5 weeks before and they eventually admitted they had lost it.

Did they do this in writing or verbally?

 

Have you asked for any other documents other than a copy of the agreement?

 

Do you qualify for legal aid?

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

 

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 the initial writ states CONDESCENDENCE first part is just about jurisdiction .No2 the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxx and as at 10 november 2008 has drawn on the said account to the extent (£15k ish) which is the sum sued for in crave one.The said sum is payable on demand.No3the defenders jointly and severally obtained loan facilities from the pursuers on a advantage gold account now numberedxxxxxxx and as at 10 november 2008 has drawn on the said account to the extent of (1.5k ish) which is the sum sued for in crave two.The said sum is repayable on demand.No4The pursuers have called upon the defenders jointly and severally for payment of the sums but the defenders refuse or at least delay to make payment and this present action is accordingly necessary.PLEA IN LAW The defenders having jointly and severally obtained monies on loan from the pursuers and the same not having been repaid when due.Decree therefor should be granted as craved.The bank told me over the phone the agreement was lost.I haven,t asked for any other documents yet and i dont think we qualify for legal aid both me and wife working .Recieved court timetable today my defence has to be in by19/01/09.Any adjustments to the writ or defences by 13/03/09.preliminary pleas and grounds in by23/03/09andOptions hearing on27/03/09. any help you can give would be appreciated.

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Hi leedoe

I assume that this is an ordinary cause action.

 

You have filed form O7 (NID) so you now have 14 days to prepare a defence. I am in the same position as you but with a credit card. The Scottish process is very different to English jurisdiction but the legislation that you will be using in your defence is the same (i.e. 1974 CCA and SI

 

Can you clarify if you have received the "Intimation of Options Hearing" yet from the Sheriff Court Service? This will show the dates that you must conform to in respect of a defence, adjustments and options hearing if it gets that far.

 

What are you planning to do? go for a non-enforceable credit agreement

Can you post up the agreement, default notice and any key pieces of information minus any personal details? I am slightly ahead in my defence and action and have spent the week reading "Civil Procedure and Practice" by Hennessy which is worth getting hold of if you can. It explains the whole process for Scottish civil actions.

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The first stage of the defence and plea-in-law within the Scottish process is to answer each statement made in the Condescendence section (this is really the English equivalent of the PoC). You need to watch out though since some statements will include both items that you want to admit (i.e. the agreement is regulated by the CCA 1974 Act) BUT not admitted (i.e. the agreemment is regulated by the CCA 174 Act as amended).

 

You should use one of the responses below to each statement in the Condescendence;

 

1. Admit ("it is admitted that...")

2. You don't know ("It is not known and not admitted that...")

3. Deny ("It is denied that.........")

4. If you have an explanation, ("It is explained that.......")

 

The response must be honest though.

 

At the end of your defence and response you will need to give a plea-in-law, however this can be changed during the process as the Defender and Pursuer make adjustments to the writ and defence. I have used the following:

 

 

 

PLEA-IN-LAW

 

 

 

1. The documentation provided by the Pursuer to the Defender under a Subject Access Request and a formal request made under Section 78(1) of the Consumer Credit Act 1974, do not conform in form or content to Section 60(1) of the same Act and as such are unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the Consumer Credit Act 1974 and declare the documentation supplied by the Pursuer as unenforceable.

 

2. Accordingly, given the Pursuer’s averments are irrelevant et separatism lacking in specification, the action should be dismissed.

 

3. The Defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.

 

In respect whereof

 

 

Signed .................................................................

 

 

Date: xxxxxxxxxxxx

xxxxxxxxxxx

xxxxxxxxxxx

xxxxxxxxxxx

 

 

DEFENDER

 

 

If you have not received all the documents that they mention in ther writ then you will need to do an Incidental Application to the Sheriff which is a request to grant an order to have the Pursuers disclose these to you. I am doing one at the moment.

Edited by Monty2007
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Hi rory the initial writ states CONDESCENDENCE first part is just about jurisdiction .No2 the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxx and as at 10 november 2008 has drawn on the said account to the extent (£15k ish) which is the sum sued for in crave one.The said sum is payable on demand.No3the defenders jointly and severally obtained loan facilities from the pursuers on a advantage gold account now numberedxxxxxxx and as at 10 november 2008 has drawn on the said account to the extent of (1.5k ish) which is the sum sued for in crave two.The said sum is repayable on demand.No4The pursuers have called upon the defenders jointly and severally for payment of the sums but the defenders refuse or at least delay to make payment and this present action is accordingly necessary.PLEA IN LAW The defenders having jointly and severally obtained monies on loan from the pursuers and the same not having been repaid when due.Decree therefor should be granted as craved.The bank told me over the phone the agreement was lost.I haven,t asked for any other documents yet and i dont think we qualify for legal aid both me and wife working .Recieved court timetable today my defence has to be in by19/01/09.Any adjustments to the writ or defences by 13/03/09.preliminary pleas and grounds in by23/03/09andOptions hearing on27/03/09. any help you can give would be appreciated.

 

Sorry, just spotted you have the Information of Options Hearing from the Sheriff so you need to prepare a defence by 19th Jan. You need to post up the docs minus any personal information. I can share my defence with you and help as much as I can. I am not a lawyer though and simply relying on using Hennessy's book on Scottish Civil Procedure and Practice plus a few tips from various people.

 

It maybe that you lodge a defence and they drop the action. The options hearing will be a challenge and any subsequent legal debate would almost certainly need a lawyer.

 

I have spoken to a few firms but they either do not have any experience of civil litigation relating to the CCA 1974 or just say you have no chance and to admit. Drummond Miller wanted £5 K and £2 K up-front, he still knew less than me! So I decided to have a go on the basis that if you don't defend then they get judgement in their favour so its a no brainer really.

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Hi Monty2007, there is no mention of any documents in the writ, only the amount of the loan and the overdraft, I have posted up the condescendence as it is worded exactly and as you can see there is no mention of any documents. So my question would be is my defence an unenforceable agreement? and how do I go about getting the relevant information, i.e, any charges on loan/and charges on overdraft and any other paperwork relating to my accounts, also can initial defence be ammended when I get relevant information, also do you have a draft letter to request such paperwork?

Thanks Leedoe

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Hi Monty2007, there is no mention of any documents in the writ, only the amount of the loan and the overdraft, I have posted up the condescendence as it is worded exactly and as you can see there is no mention of any documents. So my question would be is my defence an unenforceable agreement? and how do I go about getting the relevant information, i.e, any charges on loan/and charges on overdraft and any other paperwork relating to my accounts, also can initial defence be ammended when I get relevant information, also do you have a draft letter to request such paperwork?

Thanks Leedoe

 

Dear Leedoe

 

Then I would suggest denying all of their statements within the condescendence, you must do each in turn and the format and numbering has to be the same and in order. You can then use a similar plea to me. If it is a regulated loan it is strange that they are not using the CCA 1974 act.

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Hi

 

This is a suggested draft defence with plea-in-law according to what you have posted.

 

You need to look at their wording again and check that the numbering is correct and statements within each section. The plea in law is not that important at this point since following your submission (to the Sheriff Court and Pursuers sols) then they will have to respond to each point in your defence. In the meantime you should issue and Incidental Application to have them produce documentation in support of their claim.

 

Have you undertaken an SAR request on the OC and a S78(1) request? We don't have CPR31.16 in Scotland so an Incidental Application is the next best thing. I am about a week ahead of you so can give you what I know but please remember I am now a lawyer and learning as I go along (literally)!

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You will need to change the defence regarding the overdraft. Overdrafts have part V (form and content) exemption from the Act so the copy of the agreement would simply be a letter from the bank.

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

 

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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You will need to change the defence regarding the overdraft. Overdrafts have part V (form and content) exemption from the Act so the copy of the agreement would simply be a letter from the bank.

 

Hi Rory

 

It is odd that they have failed to mention that there is a regulated agreement (CCA 1974)? I suppose they must have done it on purpose given that they have combined a loan agreement with an OD.

 

It would be good to see the letter in which the bank admits it does not have the agreement.

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The only letter I have requested is a copy of the loan agreement, the bank received this request on 24/12, they did not admit in writing that they don't have it only verbally over the phone, sorry cant open that document you sent, how do I undertake a subject access request?

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The only letter I have requested is a copy of the loan agreement, the bank received this request on 24/12, they did not admit in writing that they don't have it only verbally over the phone, sorry cant open that document you sent, how do I undertake a subject access request?

 

Try this for a Subject Access Request:

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

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This is a suggested Defence, you will have to modify it since I wrote this for a credit card defence and you have a loan so you will need to quote the relevant parts of the CCA.

 

Court Reference Number: xxxxxxxxx

SHERIFFDOM OF xxxxxxxxxx AT xxxxxxxxx

in causa

xxxxxxxxxx

xxxxxxxxxx

xxxxxxxxxx

xxxxxxxxxx

PURSUER

against

xxxxxxxxxxx

xxxxxxxxxxxx

xxxxxxxxxx

xxxxxxxxxx

DEFENDER

DEFENCE

1. The Pursuer states, “The Defender has resided within Scotland for a period in excess of three months and presently resides at the address specified in the instance”.

This is admitted .

2. The Pursuer states that, “the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxx”.

This is admitted.

The Pursuer states that, “as at 10 November 2008 has drawn on the said account to the extent (£15k ish) which is the sum sued for in crave one”.

This is denied. It is explained that the agreement between the parties is therefore regulated by the Consumer Credit Act 1974. It is further explained that on xx/xx/xx the Defender requested that the Pursuer provide him with a true copy of the executed credit agreement, which is his statutory right, pursuant to Section 78(1) of the Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. In response, the Pursuer failed to supply the executed credit agreement as defined under Section 78(1) of the Consumer Credit Act 1974. The Defender subsequently informed the Pursuer that the account was in dispute and has responded similarly to various companies that the Pursuer has appointed in relation to this matter.

Section 78(1) of the Consumer Credit Act 1974 states:

78. Duty to give information to debtor under running-account credit agreement.-

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a) the state of the account, and

(b) the amount, if any currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

In response to the purported credit agreement supplied by the Pursuer, it is denied that this is a valid executed credit agreements within the definition contained within the Consumer Credit Act 1974 and it is submitted that the document supplied to the Defender fails entirely to comply with Consumer Credit legislation as stated below.

The documentation supplied by the Pursuer is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts:-

Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under Section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). The prescribed terms for a Running credit account as set out below:

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

It is explained that the document supplied by the Pursuer does not confirm to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the agreement. These terms must be contained within the Agreement to be compliant with Section 60(1) of the Consumer Credit Act 1974. The Court of Appeal case law, Wilson and another v Hurstanger Ltd [2007] is applicable and cited below.

I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

If the agreement does not contain these terms in the prescribed manner it does not comply with Section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order. Notwithstanding this, the agreement must be signed in the prescribed manner to comply with Section 61(1) of the Consumer Credit Act 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

The courts powers of enforcement where agreements are improperly executed by way of Section 65 of the Consumer Credit act1974 are themselves subject to certain qualifying factors. Under Section 127(3) of the Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where Section 65(1) has not been complied with Section 127(3) the court shall not make an enforcement order under Section 65(1) if Section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under Section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

3. The Pursuer states, “the defenders jointly and severally obtained loan facilities from the pursuers on a advantage gold account now numbered xxxxxxx and as at 10 November 2008 has drawn on the said account to the extent of (1.5k ish) which is the sum sued for in crave two. The said sum is repayable on demand”.

This is denied. It is explained that the Pursuers have failed in their obligation as Pursuant to a Section 78(1) request under the Consumer Credit Act 1974.

4. The Pursuer states, ”The pursuers have called upon the defenders jointly and severally for payment of the sums but the defenders refuse or at least delay to make payment and this present action is accordingly necessary”.

This is denied.

PLEA-IN-LAW

1. The Pursuer has failed to supply the Defender under a Subject Access Request and a formal request made under Section 78(1) of the Consumer Credit Act 1974 copies of the regulated credit agreement. Accordingly this alleged debt is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the Consumer Credit Act 1974 and declare the documentation supplied by the Pursuer as unenforceable.

2. Accordingly, given the Pursuer’s averments are irrelevant et separatism lacking in specification, the action should be dismissed.

3. The Defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.

In respect whereof

Signed .................................................................

 

Date: xxth January 2009

Xxxxxxxx

Xxxxxxxxx

Xxxxxxxxx

xxxxxxxxx

DEFENDER

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Thanks for that Monty great documents, just acouple of points does the SAR request go to baank or SOL or both and should there be any mention of the legal action ?Also i haven't sent them a letter yet putting the account in dispute should i do this now?I will try and adjust your defence acccordingly and post it up for you to have a look at .Again many thanks for your help

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Thanks for that Monty great documents, just acouple of points does the Subject Access Request request go to baank or SOL or both and should there be any mention of the legal action ?Also i haven't sent them a letter yet putting the account in dispute should i do this now?I will try and adjust your defence acccordingly and post it up for you to have a look at .Again many thanks for your help

 

Hi leedoe

 

You need to send the Subject Access Request to RBS along with the £10 fee. You may wish to add the following:-

 

"Given that this matter is the subject of legal action your immediate compliance is requested in respect of this matter. Any delay may cause problems in the submission of my defence which I would have to bring to the attention of the Sheriff".

 

You may also want to consider sending this to their Sols:-

 

 

Royla Bank of Scotland Limited -v- you

In the Sheriffdom of xxxx at xxxx

Court Reference Number: xxxxx

REQUEST FOR INFORMATION

 

Dear Sirs

REQUEST FOR INFORMATION

On xxxxxxxxxxx, I received a court claim from your firm as referenced above. I write to inform you that I intend to defend this Claim.

In order for me to file a defence and counter claim, I require some further information from you. Given that this matter is now the subject of legal proceedings, I hereby request that you provide me with the information and documents detailed below within seven days of the receipt of this letter.

1. I require you to supply me with true and signed copies of the executed credit agreements to which you refer in your claim, together with any terms and conditions that applied to these accounts at the time they were opened and those at the time of the alleged defaults. In this respect, your attention is specifically drawn to the compliance of such documentation as prescribed under Section 78 (1) of the Consumer Credit Act 1974 (hereinafter referred to as “the Act”).

If it transpires that no such documentation exists, or is in a form that would render any alleged debt unenforceable, you must write to tell me within the prescribed time limit given above.

2. All records and correspondence that you hold on me relevant to this claim, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your firm and/or your Client.

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my accounts formerly held with your Client.

c. True copies of the default notices that your Client alleges to have been served to me, as required under the Act.

d. Details of any collection charge(s) added to the accounts; specifically, the date such were levied, the amount of the charge(s), a detailed financial breakdown of how the charge(s) were calculated, and what the charge(s) covers.

3. Any other documents that you seek to rely on in court.

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