Credit agreements in Scotland from 1st Decemeber 2009

[IdaInFife]

Thanks to cerberusalert for revealing this

 

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

 

 

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.

 

The council’s secretariat has told solicitors that individual sheriffs will take their own view as to what constitutes a copy and they may require a photocopy of the agreement rather than a ‘reconstituted copy’. Stephan Cowan, managing partner of Yuill & Kyle Solicitors, said this is surprising as creditors are usually required to provide ‘true copies’. "A true copy does not mean an exact copy and there is case law to support this," he said.

 

The impact on lenders and debt purchasers could be significant as many financial institutions are only able to provide a ‘reconstituted copy’ – repopulating a template from computer records. They are bound to litigate in the debtor’s domicile and so would not be able to recover those debts.

 

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.

 

The Rules Council is meeting on 6 November and has said it is willing to receive representations from creditors and industry groups concerned about the change. It can be contacted at [email protected] k (0131 221 6766) or by letter at: The Secretary, Sheriff Court Rules Council, Hayweight House, 23 Lauriston Street, Edinburgh EH3 9DQ.

 

Credit Today online

[blueda]

Thats interesting Ida, i wonder if there will be a reaction from the creditors and DCAs between now and 1st december.

[IdaInFife]

my thoughts exactly

 

ida x

[24233513afw]

Thanks Ida

 

For sending me this info its greatly appreciated.

 

This makes very interesting reading. As bluedasays it will be even more interesting to see what reaction the creditors and DCA have.

 

Many thanks to cerberusalert for finding this piece of info and passing it on.

 

Cheers

AFW

[leothelioncub]

well i thin we should all be sending something to them otherwise all they'll receive is representations from the creditors side? any idea's what our reply should be?

[seriously fed up]

I had court papers from M&S earlier this year. About month before the first hearing on their initiative a motion of absolvitor was agreed. But in their initial application they said they would produce and rely on the original application form for a Chargecard from 1984. In addition to the complication that this form was to support transfer to an &more card, I had an inkling that they didnt have the form, so part of my defence was that the form would be non-compliant (no credit limit etc), so even if they had the form i would still have something to argue.

Their withdrawal was, of course, without admission of liability and on a purely commercial basis. But if they didnt have the papers, I had called their bluff. Now I am not making out that I am some kind of far-sighted hero. My point is that if lenders are putting cases into the court system, trying to bluff debtors into paying (basically using court papers as a frightener) and then withdrawing when their bluff is called (OK, Marks and Spencer Money, make my day punk!), I would have thought there is a reasonable hypothesis that the court system is pretty edit off with this and its one thing to edit off the creditor, but not the Sheriff (or his Clerk!). If this is the situation, then, for lenders, the damage might well be done.

I think what is particuarly interesting is whether the new regulations and/or Sheriffs take a strong view of "copy of a regulated agreement" - "no signature, or prescribed terms Mr Lender. Get lost". And if lenders dont have a signed agreement with the prescribed terms within the signature document, then basically- because of s127 - its a waste of time for everyone, including the court, and arguably to use the court system like this (as M&S might have done in my case), is simply an abuse of process and it is time it was stopped.

Edited November 7, 2009 by IdaInFife
edit for by passing swear filter

[SRR1972]

Hi

 

Does anybody have any news around this ? Got my fingers crossed

 

Stu

[IdaInFife]

nothing seems to have been updated so far but as it just started yesterday it could spread over a few days

 

ida x

[lifeafterdebt]

Hi,

 

Have not seen this posted yet (could be wrong) but here is a link to the actual wording for the amendment if anyone is interested.

 

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009

 

Cheers:)

[IdaInFife]

thanks LAD

 

ida x

[lifeafterdebt]

Hi Ida,

 

No problem. Hope the changes will benefit the consumer for a change! (not holding my breath though)

 

Cheers:)

[militantconsumer]

Any action would not be based on s77/78 of the Consumer Credit Act. So why would the type of copy be what it is acceptable to provide under that section? Surely it should be a copy taken from the original agreement that would be needed. After all, the original agreement would be needed in a court case.

 

Section 77/78 is a red herring, in my opinion.

[jamielad75]

Court rules amended before they come into force

 

13 Nov 09

New Act of Sederunt deletes procedural requirement in actions under Consumer Credit Act

 

 

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.

 

Too good to be true it seems eh???

 

An averment??...i.e..an emphatic declaration?...Whats more emphatic than the original agreement??...honestly...swines!!!

Edited November 17, 2009 by jamielad75

[seriously fed up]

On the one hand, the only way to explain this is via the influence of the banks (hard to believe they still have any, but there you go), and there can be no question they will seek to continue to exercise this.

On the other hand, it could be a rope for a few more bankers to hang themselves, as IF they abuse this enough - bring forward cases for which NO agreement exists - then eventually the Courts are going to get wise.

This leads me to two conclusions:

 

1. that it is important for anyone put in the position of being taken to court on the basis of the bank's averment to take the case as far as necessary to make them put the agreement into court. There can be no doubt that banks will quite happily say there is an agreement when they know fine well there is not. They need to be hung out to dry for this
   
2. the consumer movement needs to begin to develop similar influence to the banks. There is no need for this amendment. If there is no agreement there is no case - end of. To allow them to proceed without putting the key piece of evidence on the table right at the start, is simply unjust. This parallels the "reform" of the Consumer Credit Act 2006 to the effect that even if the prescribed terms are not present the court can still enforce the agreement. Google this and have a look at the comment on the financial/ legal sites - its hardly surprising, but still quite revealing. The consumer movement (ie ALL the rest of us) need to begin to exercise similar influence. Lets be clear, the banks got themselves into this mess because of pure greed (never mind with the legal niceties - just get them signed up) but will present it as everyone else's fault but their own.
   

[SRR1972]

So does this mean that the banks don't have to produce the actual CCA now ? Just refer to the fact they believe it exsists ?

 

S

[jamielad75]

Looks like it...An amendment to the amendment??...i know go figure!!...makes you wonder what possible arguement their representatives could have put forward at that meeting on the 6th of November that was strong enough to suggest it unnecessary to attatch the original agreement to the writ or summons...And who says the Law was seperate from the State eh??

[Helenatroy]

So does this mean that the banks don't have to produce the actual CCA now ? Just refer to the fact they believe it exsists ?

 

S

 

 

Surely they would have to produce a CCA, or else they could

make false claims!!

 

Am I reading it correctly, that the bank/dca wouldn't have to initially produce

the agrement in court, they would just have to 'state' (aver) that the agreement exists - but they would eventually have to produce the agreement if I was contesting the case?

 

HT

Edited November 18, 2009 by Helenatroy

[IdaInFife]

If you are taken to court then you can put in a request for docs.

 

Ida x

[jamielad75]

Exactly Helen.....When you have been issued with a writ or summons you have 4 options...1..admit liability for the claim and settle it with the pursuer right away...or 2..admit liability for the claim and make written application to pay by instalments or by deferred lump sum...or 3..admit liability for the claim and attend court to make application to pay by instalments or deferred lump sum...or 4..dispute the claim and attend at court..

Now note the first 3 options...admit liability, admit liability, admit liability....chances are the majority of people who receive this court form will opt for one of these options in attempt to avoid the court room...infact, as i stated in another post..were it not for the Ida`s the Rory32s and the Monty2007s of this world ..i too may have been one of them..so obviously this plays into the dca`s hands...up till now they didnt have to present the original agreement to get this far...hoping that you or me would choose options 1 2 or 3.......utilising the laws of the land as a form of bully boy tactics...its only when you choose option 4 and defend the action that they have to start proving things....i know...disgusting!!..so it was hoped this amendment would have prevented that...but what do you know...its as good as been overturned!!...still as SeriouslyFedUp says...we have to stand up to them...and i think more of us will...Peace and love!!

[Crocdoc]

Would it be fair to say that the unfair relationship argument in cases where PPI has been attached could in itself be a way of forcing production of original documentation in the very early stages.

[blueda]

Has anyone heard any more of this ? as the date has now passed.

[seriously fed up]

I think I read somewhere that it was watered down so that they dont actually have to produce the agreement when they make the claim to the court for the first time, just "aver" (affirm) that the agreement does exist. So a fairly high degree of freedom for them still. You might think they wouldnt start a case without an agreement, but I am pretty sure that they would.

[blueda]

So little has changed in law if anything at all, perhaps all that has taken place is a review.

[seriously fed up]

i think if you go back to page 1 you will see the discussion there.

For sure, the proposal was "copy of agreement with claim", but this has been watered down to an averment that the agreement exists. One can only wonder how/ why this happened?

its interesting to contrast this with cputr 2008 where it could be argued that a lender suggesting that they have an enforceable agreement when they know they dont is unfair, and, I think, technically a criminal offence. Of course there will be enforceable agreements, and there will be some agreements where there is genuine uncertainty, but for sure lenders and DCAs are trying to enforce agreements that they say are enforceable but they know perfectly well that they arent (which is why some cases go into court but get withdrawn before there can be a hearing).

[olrac123]

Hello and thanks for this- if I read it correctly I can exercise the Pre-Action Protocols parts 31.16 to force the pursuers to provide the actual doc? or or?

 

Many thanks,