Scottish court change ‘threatens recovery’ - 02/10/2009

[PGH7447]

Credit Today online

 

Creditors and debt buyers will be unable to recover debts through the Scottish courts unless they have copies of regulated agreements, under new rules.

 

Experts are calling on those who use the Scottish courts to send representation to the Sheriff Court Rules Council, which initiated the change to the court rules. The change is due to be implemented on 1 December. From then, court actions regulated by the Consumer Credit Act 1974 will require a copy of the regulated agreement which will have to be attached to the writ or summons

 

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Think I will move north of the border

[Monty2007]

Excellent, about time!

[the_shadow]

I see the quote in the story claims re-constituted agreements can be used in court.

 

S.

[ODC]

I see they are whingeing already about it and saying the OFT says True Copies are acceptable.

 

At the end of the day they still need the original agreement to enforce the debt or else S 127 applies.

 

Ask the MBNA crowd who lost in court this week because they hadnt the original agreement

[Tartan Barty]

Oh what a shame I moved North of the border 7 years ago and currently have Bryan Carter threatening court for an alleged CC with only an application form and no prescribed terms

[Pinky69]

I have lived in Scotland all my life. Goodbye any plonker of a DCA or bank that has no agreement.:grin:

[PGH7447]

send bryan the article then and watch him squirm:D

[noomill060]

What a good idea...

[summer30]

thats it Im moving

[the_shadow]

thats it Im moving

 

Yep at last a(nother) reason to move north of the border...

Just read the following post

 

 

 

 

 

 

 

ONLY JOKING!

 

S.

Edited October 2, 2009 by the_shadow
additions

[dcakiller]

Score another one for scotland, 5 year statute of limitations as well.

[haggis1984]

Another reason to be a proud scotsman!

[PGH7447]

Another reason to be a proud scotsman!

 

Beam me up Scotty;)

[maroondevo52]

Did someone call

[royalscot]

Lot to be said about Scottish Law...

[haggis1984]

Lot to be said about Scottish Law...

 

Lol, our compassion knows no bounds!

[veryweary]

.

 

At the end of the day they still need the original agreement to enforce the debt or else S 127 applies. quote]

 

Glad to hear this will still apply. There's a huge thread on the forum about MBNA who are allegedly quite adept now at producing copy application forms with prescribed terms squashed conveniently on to a side column bar, or allegedly squashing them on to the opposite side of the page which was originally the MBNA folding return mail address.

[angry cat]

Away the the Outer Isles...

 

http://www.opsi.gov.uk/legislation/scotland/ssi2009/pdf/ssi_20090294_en.pdf

 

paras 2-7

 

I have always wanted to live in the Outer Hebrides;

so beautiful!

 

AC

[DonkeyB]

Away the the Outer Isles...

 

http://www.opsi.gov.uk/legislation/scotland/ssi2009/pdf/ssi_20090294_en.pdf

 

paras 2-7

 

I have always wanted to live in the Outer Hebrides;

so beautiful!

 

AC

 

I have a house there AC. It's great when the weather's good, but when it's not so good - be very afraid! The 9.30am-3.30pm midwinter days are also a bit of a b*gger. I think when I retire it will be six months in the Hebrides, six months in the Caribbean. And not a DCA in sight...

 

(Starting to wish I hadn't seen the idiots off!)

[angry cat]

My Grandmother came from Lewis.

Yes, I know about the long winter days...

Oh but the summers spent on the beaches of Harris!

 

Don' forget to open the above link Guys:)

 

AC

[RHOOD]

Looks like overtime for CMS TELFORD

[angry cat]

Paras 2 - 7 come into force on 1st December 2009

 

2.—(1) The Ordinary Cause Rules are amended in accordance with the following

subparagraphs.

(2) After rule 3.2 (actions relating to heritable property) insert—

“Actions relating to regulated agreements

3.2A. In an action which relates to a regulated agreement within the meaning given by

section 189(1) of the Consumer Credit Act 1974(b)—

(a) the initial writ shall include an averment that such an agreement exists and details

of that agreement; and

(b) a copy of the regulated agreement shall be attached to the initial writ.”.

(3) In rule 7.3 (applications for time to pay directions or time orders in undefended causes)—

(a) after paragraph (2) insert—

“(2A) As soon as possible after the application of the defender is lodged, the sheriff clerk

shall send a copy of it to the pursuer by first class ordinary post.”; and

(b) for paragraph (4) substitute—

“(4) Where the pursuer objects to the application of the defender made in accordance with

paragraph (2) he shall on the same date—

(a) complete and lodge with the sheriff clerk Form O3A;

(b) minute for decree in accordance with rule 7.2; and

© send a copy of Form O3A to the defender.

(4A) The sheriff clerk shall then fix a hearing on the application of the defender and

intimate the hearing to the pursuer and the defender.

(4B) The hearing must be fixed for a date within 28 days of the date on which the

Form O3A and the minute for decree are lodged.”.

(4) In the Schedule, for Form O3 (form of citation where application for time to pay direction

and time order may be made) substitute the forms set out in Schedule 1 to this Act of Sederunt.

3.—(1) The Summary Application Rules are amended in accordance with the following

subparagraphs.

(2) In rule 2.4 (the initial writ)©, after paragraph (4) insert—

“(4A) In an action which relates to a regulated agreement within the meaning given by

section 189(1) of the Consumer Credit Act 1974—

(a) the initial writ shall include an averment that such an agreement exists and details

of the agreement; and

(b) a copy of the regulated agreement shall be lodged with the initial writ.”.

(3) In rule 2.22 (applications for time to pay directions or time orders)—

(a) in paragraph (2)(b) for “seven” substitute “14”;

(b) for paragraph (3) substitute—

(a) S.S.I. 2002/133, amended by S.S.I. 2003/26 and 601, 2004/197, 2005/648, 2006/509, 2007/6, 339, 440 and 463, 2008/121,

223 and 365 and 2009/107.

(b) 1974 c.39.

© Rule 2.4 was amended by S.S.I. 2004/197.

3

“(3) On lodging an application under paragraph (2)(b), the defender shall send a copy of

it to the pursuer by first class ordinary post.

(4) Where the pursuer objects to the application of the defender lodged under

paragraph (2)(b) he shall—

(a) complete and lodge with the sheriff clerk Form 5A prior to the date fixed for the

hearing of the summary application; and

(b) send a copy of that form to the defender.

(5) The sheriff clerk shall then fix a hearing in relation to the application under

paragraph (2)(b) and intimate the hearing to the pursuer and the defender.

(6) The sheriff may determine an application under paragraph (2)© without the defender

having to appear.”.

(4) In Form 4 in the Schedule (form of warrant of citation etc.), in paragraph (b), for “seven”

substitute “fourteen”.

(5) For Form 5 in the Schedule (form of notice etc.), substitute the forms set out in Schedule 2 to

this Act of Sederunt.

4.—(1) The Summary Cause Rules are amended in accordance with the following

subparagraphs.

(2) After rule 4.2 (statement of claim) insert—

“Actions relating to regulated agreements

4.2A. In an action which relates to a regulated agreement within the meaning given by

section 189(1) of the Consumer Credit Act 1974—

(a) the statement of claim shall include an averment that such an agreement exists and

details of the agreement; and

(b) a copy of the regulated agreement shall be attached to the summons.”.

(3) In rule 7.2 (application for time to pay direction or time order)—

(a) after paragraph (1) insert—

“(1A) The sheriff clerk must on receipt forthwith intimate to the pursuer a copy of any

response lodged under paragraph (1).”;

(b) in paragraph (2), for “two days” substitute “9 days”; and

© for paragraph (4) substitute—

“(4) If the pursuer wishes to oppose the application for a time to pay direction or time

order made in accordance with paragraph (1)(a) he must before the time the sheriff clerk’s

office closes for business on the day occurring 9 days before the calling date—

(a) lodge a minute in Form 19; and

(b) send a copy of that minute to the defender.”.

(4) For Form 1a (summons) in Appendix 1 substitute the form set out in Schedule 3 to this Act

of Sederunt.

(5) For Form 19 (form of minute) in Appendix 1 substitute the form set out in Schedule 4 to this

Act of Sederunt.

5.—(1) The Small Claim Rules are amended in accordance with the following subparagraphs.

(2) After rule 4.2 (statement of claim) insert—

“Actions relating to regulated agreements

4.2A. In an action which relates to a regulated agreement within the meaning given by

section 189(1) of the Consumer Credit Act 1974—

4

(a) the statement of claim shall include an averment that such an agreement exists and

details of the agreement; and

(b) a copy of the regulated agreement shall be attached to the summons.”.

(3) In rule 8.2 (application for time to pay direction or time order)—

(a) after paragraph (1) insert—

“(1A) The sheriff clerk must on receipt forthwith intimate to the pursuer a copy of any

response lodged under paragraph (1).”;

(b) in paragraph (2) for “two days” substitute “9 days”; and

© for paragraph (4) substitute—

“(4) If the pursuer wishes to oppose the application for a time to pay direction or time

order made in accordance with paragraph (1)(a) he must before the time the sheriff clerk’s

office closes for business on the day occurring 9 days before the hearing date—

(a) lodge a minute in Form 13; and

(b) send a copy of that minute to the defender.”.

(4) For Form 1a in Appendix 1 (summons) substitute the form set out in Schedule 5 to this Act

of Sederunt.

(5) For Form 13 in Appendix 1 (form of minute) substitute the form set out in Schedule 6 to this

Act of Sederunt.

6. But the Ordinary Cause Rules, Summary Application Rules, Summary Cause Rules and Small

Claim Rules as they applied immediately before 1st December 2009 continue to have effect for the

purpose of any application for a time to pay direction or a time order made in connection with an

initial writ or summons, as the case may be, lodged before that date.

Return, calling and hearing dates

7.—(1) In rule 4.5(7) of the Summary Cause Rules (period of notice), for “seven days”

substitute “14 days”.

(2) In rule 9.1(3) of the Small Claim Rules (the hearing), for “seven days” substitute “14 days”.

(3) But rule 4.5(7) of the Summary Cause Rules and rule 9.1(3) of the Small Claim Rules as

they applied immediately before 1st December 2009 continue to have effect for the purpose of any

summons lodged before that date.

[RHOOD]

Will save a lot of hassle for both consumers and the courts:D

 

bet ya lot of action between now and 1st Dec

[DonkeyB]

Just noticed one distinct load of cr*p in the original Credit Today report.

 

They state:

 

"The stance also differs from that taken by the Office of Fair Trading, which states that creditors must provide ‘true copies’ under sections 77 and 78 of the Consumer Credit Act and accepts reconstituted copies as valid."

 

Er, not quite. They are giving misleading info here. Yes, the OFT says a reconstituted or 'true' copy may be used in satisfying a request under section 77/78, ie. a CCA request.

 

However, the OFT most certainly does not agree that this can be used to enforce an agreement in a court of law. It is the law, rather than the OFT, which remains perfectly clear on this.

 

So, in some senses there is no real change in Scotland, just a clarification of the law as it is. Wish they'd do the same in the rest of the UK.

 

It's a shame when so-called 'journalists' resort to blatant pro-industry twisting by misrepresenting the facts. Makes me ashamed to be one...

[angry cat]

DB, one cannot only expect distorted POOH from the debt collection industry!

 

That is why, I wanted to check the source of said information, rather than believe what has been written in Credit Online Today...never believe everything that you read in the papers.