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

[DonkeyB]

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.

 

Quite right AC. Isn't lying to yourself the very definition of delusion'?

[Luss]

Solicitors have been circularising their creditor clients with details of this change for some time, especially Kyle & Yule. The fact that creditors have been provided with a right to representaion at the meeting on the 6th November is a worry as they will undoubtedly seek to water down the effects of the changes. I do feel that although time is short, as many borrowers as poosble should write to The Secretary of the Sheriff Court Rules Council at Haywieght House. 23 Lauriston Street, Edinburgh, EH3 9DQ. No doubt all of the creditors, their legal council and other pursuaders will be wheeled in to try and change the new rules.

 

The fact that they are worried is underlined by the fact that the rules only seek the pursuer to bring forward at the outset that which they have to rely upon should the hearing continue. What the changes really mean is that creditors are robbed of the ability to threaten legal action and the costs associated with defending that action. Creditors depend upon the reluctance of most borrowers to submit to the Court and to the posibility of cross examination. Most borrowers see a Court as an area where they are out of their depth, subject to unknown and unexpected rules and proceedures which will leave them exposed to the ridicule of creditors legal representitives. The cost of having legal reprentation to avoid this situation arising means that this is not a practical option. Most solicitors are now charging £165 per hour for their services, the definition of their time to include reseach, travelling and time waiting for the case to call at the Court. Even if the borrower wins and claims costs, these will only cover a proportion of the costs expended.

 

This change could be very significant and a quick communication with the Rules Council supporting their changes will at least confirm to them that their foresight does have the support of the public . It will also put into context the pressure that will inevitably be exerted by the creditors and their paid acolytes. Let's exert the power of the pen.

[jed2004]

Excellent!!! I'm in Edinburgh , next are still threatening me with court action even though all the dca's chasing me have admitted next can't provide a cca cause they don't have one!!

[Luss]

Jed2004's postion is not unusual insofar that creditors without the documentory evidence seek to pressure consumers into making payments to which they are not obligated. This, as I have said in another thread, appears to be directly contrary to Part 2 section 5 a&b of the CPUT 2008. They are trying to induce an aveage consunemer to take an action which they would not otherwise have taken. By purporting to have the agreement or threatening legal action when this is not justified, they must be contravening the Act. The problem with the Act being that we are all depandant upon the OFT as the enforcers to take the necessary legal action. This is extremely unlikely to happen given the sclorosis (?) which pervades that organisation. If however we arranged a concerted campaign and send all of the cases to them which fell into this catagorty and demanded that they take action, then maybe they would be forced into action. After all we are only asking them to invoke the law which they are mandated to do. What is the point of Parliament passing legislation, restricting the enforcement to one body, and then that body takes it upon itself to interpret the law by not seeking to impose it. Creditors are aware of this and treat the OFT with distain and contemt.

 

With the abuses catalogued on this site on a daily basis it is obvious that the licencing requirements are also "interpreted " by the OFT. Is there anyone else interested in a campaign where section 5 a&b could be invoked via the OFT by sufficient of us taking the trouble to write to the OFT on each occassion that creditors abuse that part of the Act? Maybe a standard letter, capable of variation for individual cases, would cut down the work but achieve the desired effect.

[Pinky69]

I live in Scotland and am about to take action against 3 banks and 1 DCA, for unlawful entries on my credit reference reports and theft amongst under things - I am raising 1 Small Claim and 4 Summary Causes. I noticed tonight on the Scottish Courts webpage as I completed one of the cases that the Summary Cause Summons changes from 1 December for litigation against a person where the claim is for a sum of money. I think they mean business.

[Luss]

Pinky 69

 

I was appreciative of your reply and you are quite right, there are a few changes coming in on the 1st December which will make creditors life more complicated.

 

Going to Court is always a daunting prospect, mainly because of the financial implications if you lose, through some technicality. A summary court case,I understand, leave you in this position. I have been trying to devise a way of using the system to maximise the effect but minimise the risk. I have been giving a thought to such a course of action and would welcome the throughts of others on this. The small debts proceedure is designed to be both more simple, more cost efficient and limit the possisble liability to costs.

 

Let's assume that you have the plastic response from the creditor stating, for instance, that an application form meets their obligations under section 77-79, and that they are therefore going to continue collecting payments. If you then wrote advising that they were in default and stating the reasons for this and adding that no further payment should be sought, if they did take a further payment they are in contravention. If say the payment was £50 and the borrower then raised a small debt action to recover the £50, the costs of the lagal action would have been minimised. To defend the action the creditor would have to prove that the application form was compliant. This would prove a cheap and effective way to have the agreement declared legally unenforcable.

 

The alternative would be to suspend payments and challange the creditor to take the matter to Court which has two disadvantages, there would be no limitations of possible costs and by the time the case reached court the borrowers credit record would have been wrecked.

 

If the Court pronounced the agreement unenforcable it may also be possible to ask the sheriff to advise the creditor that no further enforcement actions should be attempted.

 

One of the changes to Court proceedures on the 1st December is that the creditor has to submit the properly executed credit agreement to the Court at the outset of any action. I would assume that the reverse would be true, that if they were called to defend an action, such as the small debt action, they would also have to deliver the properly executed agreement upon the initial statement of defence.

 

I may be flying a kite here and would welcome any thorughts, even if it is to shoot my kite down. Better here than in Court!

[Pinky69]

They will have to produce the agreement in defence - they would have to now anyway as as litigant you would be putting them to proof that an agreement exists. I had an interesting experience at court when I went to lodge my first Summary Cause last week. I was given back the summons to make a slight alteration in one of the sections - done. I was expecting to have to make more changes so I was pleased with my first attempt at drawing up a summons. The Clerk of Court, who read it, said that it would have to go to the Sheriff for review in case it had to go to Ordinary Cause, the next step up. My initial reaction was "Oh no!" thinking of the expense of a solicitor as you cannot raise Ordinary Cause yourself. I thought itt would be out of the question. I did not realise that Legal Aid ceilings had risen over the years from circa £10k to circa £25k and two parts of my income don't count as I am disabled. So I could get Legal Aid if the board agree I have a case and I can find a suitable lawyer to take it on. I live in hope! It's a lot of hard work but I really do want to nail them and I know legally I can.

[Pinky69]

Duplicate removed.

[jason_mnm]

Does that mean we should go to Scotland to get this benefit of CCA

[Pinky69]

In England and Wales and NI they would still have to produce an an enforceable agreement. The difference now in Scotland is that they have to produce copies of the actual regulated agreement when they lodge the summons or there is no case to answer. None of this application forms with wonky T&Cs rubbish!

Edited November 22, 2009 by Pinky69

[cerberusalert]

New procedural rules affecting some actions in the sheriff court have been amended before they come into force.

The Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009 includes provisions amending the four principal sets of sheriff court rules so as to include a requirement that in proceedings relating to a regulated agreement within the meaning of section 189(1) of the Consumer Credit Act 1974, the pursuer requires to lodge a copy of the agreement when presenting the initial writ or summons.

Those provisions were to come into effect on 1 December 2009. Now another Act, the Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009, signed by the Lord President yesterday, amends the first Act with effect from 30 November, so as to remove that requirement.

Instead, the initial writ or statement of claim shall include an averment that such an agreement exists, and details of the agreement.

It is understood that a subcommittee of the Sheriff Court Rules Council is to consider the matter further and make recommendations to the Council.

 

The Journal Online : Court rules amended before they come into force

[Monty2007]

New procedural rules affecting some actions in the sheriff court have been amended before they come into force.

The Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009 includes provisions amending the four principal sets of sheriff court rules so as to include a requirement that in proceedings relating to a regulated agreement within the meaning of section 189(1) of the Consumer Credit Act 1974, the pursuer requires to lodge a copy of the agreement when presenting the initial writ or summons.

Those provisions were to come into effect on 1 December 2009. Now another Act, the Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009, signed by the Lord President yesterday, amends the first Act with effect from 30 November, so as to remove that requirement.

Instead, the initial writ or statement of claim shall include an averment that such an agreement exists, and details of the agreement.

It is understood that a subcommittee of the Sheriff Court Rules Council is to consider the matter further and make recommendations to the Council.

 

The Journal Online : Court rules amended before they come into force

 

On one hand that is bad news but at least the Pursuer's are required to state the agreement exists and therefore a motion (Ordinary Cause) or Incidental Application (small or summary cause) will force production of the agreement.

 

In reality though little will change if this is the final position given that the legal arguments will relate to the enforcability of the agreement under the CCA 1974 and supporting SI's/precedents.

[trigot33]

Guys and girls, what does this mean for someone who has had old debts from say 2000 - 2003, to my understanding, anyone who wants to enforce a debt needs the ``original` agreement from the time the funds were advanced, or cc taken out right ?

 

So any creditor needs all the correct paperwork to enforce. If they dont have it, they cannot enforce via the courts, which is usually the only way they can. please advise.

 

thank u.

[trigot33]

Could this also mean they will use english courts to enforce debts in scotland ??

[trigot33]

Tue is 1st of december LOL , so can we breath a little easy now ???????

 

I dont have appointments to go to any court yet, maybe they missed me lol.

[UnmoderatetheNet]

We need an amended DRAFT letter to take into consideration the changes for those living in Scotland.

[Pinky69]

It means they must aver that an agreement exists in their initial writ and can be asked to produce it. If no agreement exists, they cannot take any action. It will be for the court to decide whether anything they do produce is enforceable. The whole point of this is to stop creditors wasting the court's time where no agreement exists.

 

Cases raised against people living in England cannot be heard in Scotland and vice versa - they are two different legal systems.

[malr1975]

Hi All,

 

I am not a legal person so excuse my question if this is daft, but with regards to the change here: The Journal Online : Court rules amended before they come into force

 

would the Court not ultimately require the Original document to proceed?

 

I had to look up averment on the internet, and it states: Averment - a declaration that is made emphatically (as if no supporting evidence were necessary)

averment - definition of averment by the Free Online Dictionary, Thesaurus and Encyclopedia..

 

So, before, I thought that if I go to Court, and the Creditor has offered a reconstructed CCA, I could argue it is not legally submittable, on the grounds that it is physically impossible to prove to that a genuine copy is a genuine copy without the corroboration of an original document to compare with the copy.

 

But now, the "averment that such an agreement exists" means that the creditor is saying,

"Judge, that agreement exists, take our word on that".

 

Surely however, if I go to court, I can say:

"Judge, I don't take the creditors word on that, so can you please now ask the creditor to provide the original document. Moreover Judge, if they do have this document (which the averment suggests), why on earth would the creditor bother bringing an averment that such an agreement exists...when they could just submit the original document rather than offering reconstructed copies or making averments".

 

Therefore, could the act of issuing an averment that such an agreement exists ultimately be an act that the creditor could not defend, if they cannot provide the original document?

 

Apologies if my interpretation is a bit Mickey Mouse, but I just see the words.

 

All the best

 

M

[Luss]

Dear Mair 1975

 

Well done with the definition of averment. Your attachment also shows the definition as "to assert formally as a fact". Under the new rules the creditor required to aver that they have the agreement, which begs the question what if, in the final analysis, they do not have the agreement and therefore avered incorrectly? Is this a contempt of court? Is this grounds for seeking damages i.e. the legal costs incurred as a result of this incorrect averment? Would a direct lie to the court be grounds for a request for the creditors CCL to be reviewed?

 

I would once again encourage interested parties to write to The Secretary to the Sheriff Rules Council, Haywiegt House, 23 Lauriston Street, Edinburgh, EH3 9DG to ask why, if a creditor is to make an averment, they cannot produce the agreement. Presumably to make an averment they require to check that they have the document and if so why can a photocopy not be provided. The production of the document may then avoid the action taking place and save the court time.

 

Lets take the opportunity to tell the Sheriff Rules Council of the abuses used by creditors and how they use their financial and leagal muscle to frustrate the intentions of the the CCA 1974.