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24233513afw

Creation Financial Services 1a small claim Summons *WON*

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I already have a post in the Legal Forum but thought now as they have sent me a Court Summons and I live in Scotland it would be better in the Scottish Forum (At first thought it would be better to keep it beside Store Cards).

 

Way back in 2007 we got into financial difficulties due to ill health.....

I CCA'd OC of my store card, they sent back a blank CCA, many letters to and fro from them saying they had complied by sending blanck CCA and terms & conditions.

 

Then I received demands from DCA again informed them no enforceable CCA. Then another DCA raised their heads eventually had to report them to Office of Fair Trading.

 

Now another DCA has contacted me again pointed no enforceable CCA then their Solicitors wrote saying legal action pending.

 

Now I have been served with Small Claim Summons at the Edinburgh Sheriff Court and really don't know which way to turn, head is just going round in circles.

 

After reading leedoe's thread and a few others that Monty, Rory, Ida, SFU have helped with. Please could you help me prepare for a court defence. Not quite sure what to expect.

 

How do I find out what their solictors are going to produce in court ?

Do I have the right to know what they are relying on ?.

 

I am not sure if I can do a defence looks quite frightening and intimidating and I have a sick husband who I look after, but I shall have a go.

 

Default Notice

I have also recently received a default notice from the Store Card Company however, they registered a default on my Credit Record with experian in July 2007 and have had DCA chasing me since then but I definately never received any Default Notice or Termination Notice at that time only letters and monthly statements demanding payment. I only received Default Notice on 12th May 2010 dated 7th May 2010.

 

It says that to dispute the claim and attend court and state a defence return page 5 on or before the return date which is 25/8/2010

Does this mean I have to have a defence written up by 25/8/2010.

 

Please Please can anybody help me through this, have tried to get a copy of the Civil Procedures & Practice Book by Hennessy but really expensive and library does not have a copy.

 

I can post up anything you peeps need.

 

I have just today sent for a SAR to OC, do I also send one to Solicitors ?

 

Any help gratefully received I feel so alone just now.

AFW

Edited by 24233513afw
Few Bits & Piece missing

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Please is there anybody that can help me!!!

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Hiya afw,

 

 

first of all what type of case is it? small, summary or ordinary?


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Hi Ida

 

Sorry... Didn't realise there was different types of cases, its a Small Claim Summons I have received.

 

As this is a Small Claim Summons, do I send a Incidential Application out, if so who do I send it to Court or Solicitors. I have seen an Incidential Application letter on CAG but can't find it again as not sure how to word it.

 

Managed to get a copy of the Hennessy Book reserved at Library(Librarian spelt the name wrong in the first instance). That will save me lots of pounds and pennies.

 

SAR went to OC on Sat they received it today (Sent Special Delivery)

 

SAR going to Sols tomorrow (Spent most of the day on phone trying to get Hennessy book)

 

Most cases I have read about seem to summary or Ordinary not Small Claims did not even realise that there was different summons till Ida pointed out to me the three different terms. (Not sure what the difference is between them).

 

Do you want me to post up a copy of the summons or would you rather I sent it by PM.

 

Would it be easier to keep to this thread or the one I had already started in Legal Section I shall be guided by your expertise.

afw

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We can merge then when we need to but be helpful just now for the others to see and comment

 

The IA is submitted with your defense which we will get some help on as you can't do too much as waiting on docs

 

Ida x


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WHat if the docs dont arrive in time to put in a defence. Does the defence have to be in before the return date or the hearing date.

 

Not quite sure about the Default notice with this lot either. OC defaulted me in Sept 2007 I never received a Default Notice or Termination Letter but they had DCA chasing me for money. Low and behold I received a default notice in May 2010 but no termination letter.

 

1. Are they allowed to get DCA to chase you before they serve a Default Notice and should they have to send me a termination letter ?

 

2. Also they recorded a default on my Credit file in May 2007. How can they record a default with sending a default notice in May 2007.

 

3. Any idea what the differenceis between the Small, Summary & Oridinary Cases in Scotland's Sheriff Court ?

 

Sorry Ida if I am firing a lot of questions just now my head is spinning and just can't seem to stop its so mumble jumbled just now can't sleep, can't eat, can't think straight. On top of this my hubby is really unwell hoping to get him admitted tohospital this week for tests.

afw xx

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Hey slow down, or your going to explode before you get your moment in court. Easy for me to say? You bet. True, though, You bet.

Some immediate questions

 

  1. when is the return date (this will be the earlier of the two dates on the document received from the court)?
  2. when is the hearing?
  3. can you get a copy of their claim up (minus your personal details)
  4. let us know when the SAR comes up
  5. Hennessy is very useful, and he deals with Summary Claims in Chapter 12. You should have the other side's claim, and at the end there should be a tear off slip which you should fill out and return to the Sheriff Clerk by the return date (the first of the two dates stated - the second being the hearing). Assuming you plan to resist the claim, you should include a brief statement as to the basis on which you intend doing so. This might be for instance "there is no executed agreement" - and as they have not produced anything with your sig on it, it might well be this. But this brevity will be to your advantage , as we only need an outline at this stage of why you will resist their claim - at this stage we dont need detail
  6. by sending a blank application form they will claim they have fulfilled s78. Have they sent anything that has your signature on it? You have sent a SAR which is good and if the documents you have asked for dont arrive on time then you can ask the court to delay the hearing until they do (or if its not in good time - the day before for instance - till you have had time to prepare a defence using these documents). You would argue this on the basis that you cant construct a defence until they disclose. But you will need to put this to the court.
  7. what is likely to happen? If they cant come up with anything else (a document that you have signed and ALSO which includes the prescribed terms - rate of interest, repayment arrangements and credit limit) they may try to blag it. That they have fulfilled s78 - pointing to Waksman's judgement in Manchester at the end of last year which allowed lenders to put out "reconstructions" (sort of "it looks like this") to satisfy a s78 request. But Waksman was very careful to distinguish s78 (what he called "the information purpose" -what is the agreement between us) and s61 (what he called the proof purpose". There is a well trodden path from s61 - which requires the prescribed terms to s65, which says that an agreement which doesnt satisfy s61 can only be enforced by a court, but the court cant do this because s127 (3) explicitly says that they cant. (google consumer credit act 1974 and you should be able to download a pdf copy - you'll need it. Also the 1983/1553 Regulations) They might add to this "here are a bundle of statements showing lending took place, now can we have our order and be gone". This would be completely wrong - BUT a Sheriff can only make a decision on the basis of what is put in front of him (or her), so you need to be ready with your counter argument. I suspect we have a decent amount of time so dont worry too much about that just now.
  8. what do we need you to do? It would be a big help if you could put a up a copy of the claim form (take all your personal details off first). When your SAR comes back, tell us what is there - if they dont have a copy of your original application form then they should tell you this. There is also an issue about the hearing in relation to your SAR. They have forty days to reply so if this went off last wee, we are looking at something like the end of August at best (it should take forty days, but it can be longer), so you need to think about an IA to get the hearing delayed till they provide the documents that you require to prepare a defence.
  9. two possible outcomes - delay granted, in which case we wait till the SAR comes through. Delay not granted
  10. In this second case (or if the SAR produces nothing they can rely on in court) then you need to go in prepared to argue the court has no jurisdiction by virtue of s127 (3). They will come back with "ah but there was lending, she owes us". You need to point to what the law says.

Re your other questions the default registered in 2007, really they shouldnt. If you put it to the court they will say they did (I have one lot who when challenged about a default notice they hadnt sent, sent me another one saying "it looks like this" - it even had someone else's name on it). Might be a point worth making, but really not sure how far it will take you.

By sending out a DN in May, they prepared the ground to terminate now - which is what they have done with this small claims action.

Difference between the types of case is the sum that can be secured - small claims means they are looking for £3k or less from you.

Lastly, I think you have a pretty good chance. Someone else (try Moragh) said when she turned up at the hearing, their solicitor looked very fed up. This is because 90% of these just go through on the nod. They wont be expecting you to fight back, and if all they can produce is a blank application form then I think we can deal with that.

SFU :)

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Hi SFU

 

Thank you for your reply last night (or should I say early this morning) it is greatly appreciated. Its so good to know that there is help out there on CAG I don't know what a lot of people would have done without this site..

 

I have read your post it must have taken ages to post up and I am really grateful somebody has taken the time to do this for me.

 

I shall try and answer all points as much as I can, so here goes.....

 

1. Summons Return Date 25/8/2010

2. Summons Hearing Date 8/9/2010

 

3. Here is a copy of the Small Claim Summons:

Page 1 Small Claim Summons

Page 2 Small Claim Summons

Page 3 Small Claim Summons

Page 4 Small Claim Summons

Page 5 Small Claim Summons

Page 6 Small Claim Summons

Page 7 Small Claim Summons

Page 8 Small Claim SUmmons

 

Also I have copied 2 letters and the Blank CCA from Creations that I received in APril 2009 1st Letter stating "Unfortunately due to a system anonmaly, a copy of the signed agreemnt cannot be retrieved.

 

1st Letter from Creation with Blank CCA

Letter

CCA Page 1

CCA Page 2

CCA Page 3

CCA Page 4

 

Received 2nd Letter from Creation again April 2009 stating "We acknowledge that whilst we failed to supply a copy of the original agreement we were not entitled to enforce the agreement as set out under 78 of the Act. We have not sought to enforce the agreement, however, interest continues to run and the debt continues to be payable.

 

2nd Letter from Creation

 

Received default Notice 14/5/10 dated 9/5/10 (Kept envelope) this is the only default notice they refer to in theie Statement of Claim

However have a default recorded on my Credit File at Experian for Sept 2007 (Never received a Default at that time). On th Statment of Slami page on Summons they only refer to the Default Notice I received in May 2010 nothing about any default in Sept 2010, when they also had DCA hounding me. Reported one of the DCA for harassment to OFT.

 

Default notice

 

4. As soon as I receive SAR I shall post up what I get.

 

5. Hennessy book - you say Chapter 12 deals with Summary Claims but this is Small Claim Summons and the book I have states Chapter 12 Small Claims is there a difference with Summary & Small Claim.

 

In the Statement of Claim in the Small Claim Summons they detail everything about me getting a card. spending the money and Owing the Money but nothing regarding a CCA....how convenient.

 

Hopefully I have ranted and raved enough for you to get the just of all this. Sometime it is difficult to function when all this and other things are building way above your head I am so gratefull for any help you can offer.

 

Enjoy the rest of your evening.

afw

Edited by 24233513afw
Few Errors

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OK thanks for all this

1 . that gives us four weeks to come up with a reply

2. and almost another two weeks to come up with a defence developing this

3. the summons puzzles me in that there is nothing in section 7, which is where their claim should be. Did they just attach the separate sheet (your 8th document in that group)? Basically, what they are saying in this claim is "money was loaned and we would like the court to help us to get it back". Their letter to you (at the top of the second group of uploads) is interesting since they have admitted that they dont have copy of the original. Of course the SAR might bring something out of the woodwork, but if not :lol::lol::lol:. If this is all they have, then - and their claim looks this way - they are going to argue "money was loaned, etc". What YOU are going to have to do is to prepare a defence at least partly based on s61 1a. This says "61.—(1) A regulated agreement (which is what you have) is not properly executed unless (a) a document in the prescribed form itself containing all the prescribed terms (rate of interest, credit limit and repayment details) and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner". (the parts in brackets in italics are my additions btw) What they have sent to you, even as a blank, falls down on there being no mention of credit limit contained in the document that they allege that you have signed (though interest and perhaps repayment are). They will come back with that credit limit is dealt with in paragraph 4 of page 2, and that its all part of a single document. But its not on the signature page and thus arguably only embodied and not contained. This leads us on to s65 (requiring a court order) but the court cant make an order as s61 (1a) - the signing requirements - have not been complied with because of s127 (3).

However, they have bigger problems than that, as even if the prescribed terms were written in foot high letters, they cant produce a document with your signature on it. Without this there is no executed agreement. And consider this - its from the Act of Sederunt 2009 (rules that govern what goes on in Sheriff Courts) it says this - "(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 the statement of claim shall include an averment that such an agreement exists and details of the agreement.” (You can find this here Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009 No. 402). in other words when putting in their claim they should have avered (guarenteed if you like) that an executed agreement existed. But I would venture to suggest that the correspondence they have sent to you is some evidence (I say "some evidence" and not conclusive, merely on the off chance that they do come up with something) that it does not and moreover that they know it does not. Moreover, the averment that the executed agreement exists should be in the statement of claim. But its nowhere in that statement as far as I can see (or anywhere else). I would suggest that this might make the whole claim incompetent and should be dismissed on that basis.

So working back the way - we can argue

a. the claim is incompetent, as the other side have not avered that an executed agreement exists as required by the Act of Sederunt (as referenced above)

b. the other side admits in their correspondence with you that no executed agreement exists

c. the documents presented are not compliant with the signing requirements of the Consumer credit act s61 (1a) and the court is therefore prevented from issuing an order by virtue of s127 (3), which while now repealed still applies to pre-2006 agreements.

4. please do that - hopefully it will be before 28th of next month. If not before then we will need to look at an IA seeking a delay till they come up with the goods (after all they should have avered that the document exists so they should have no bother finding it)

5. Chapter 12 is indeed small claims and the one you are looking for - mea culpa.

 

In the meantime, just to give you something to do, it might be an idea to use the search facility on the site - you will find it on the same bar as things like "user cp, faq, calendar etc". Do a search on Creation on here - and maybe in Google - and see what you come up with. Its always a good idea to "know your enemy".

 

Lastly, yes they will go on about you getting the money, spending it etc. However - and this might well be the toughest part to be honest with you - you are going to have to be very tough, and very clear that you are in a court of law and not a court of morals. The opinion the Sheriff might or might not have about you is neither here nor there. His (or her) job is to apply the law and imo its on your side. But you need to be strong enough to ensure that the discussion doesnt lapse into "she got the money ....". Neither here nor there.

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Hi SFU

 

Many thanks again for your reply and advice...you make it all sound straight forward...I wish. I am **** scared everytime I think about as soon as I open my eyes in the morning its there before I close them at night and the worst part is during the night when you are lying awake and your brain & stomach is doing somersaults

 

However you have helped to calm me down a bit. This site seems to have that kind of effect on people especiallly when we have people like yourself and others who are prepared to give up your time to help people like me I do hope you realise how much I appreciate what your are doing for me.

 

You say that the "Summons puzzles you" in that they haven't said anything about an executed agreement I was lead to believe that after 1st Dec 2009 they had to guarantee that one existed (As you said this might turn up in the SAR). As for the Statement of Claim...yes it is as you have said a sheet of paper attched. Also as you said they seem to be going down the line - We loaned you the money now we need the court to help us get it back but nothing saying they have an executed agreement.

(Hopefully because they dont have one)

 

Will wait for SAR and let you know what I get back in return.

 

As for preparing a defence I just dont have a clue where to start or finish and would be grateful for any help yopu can give me.

 

I dont want to hound you constantly so how long do you think I should give them to get back to me with info.

 

SAR has gone to Creation on Saturaday they received it on Monday but they have forty days to send it back (unfortunately I don't have 40 days)

 

I have sent a letter yesterday requesting the info from the Sols checked today and Royal Mail are still processing it, I sent it by Recorded Delivery maybe I should have sent it Special Delivery. Do you think I should resend it tomorrow by Special Delivery, see I am starting to panic again.

 

Once again can't thank you enough enjoy the rest of the evening.

afw

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Hi SFU

 

Sorry forgot to mention that there is tons of charges on this account and some PPI that I had at the beginning that I had cancelled would this affect the case.

afw

Edited by 24233513afw
oops spelling!!!

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Re charges and ppi, what you would need to do is to work out

 

  1. what they are worth - total
  2. interest on them. To help you to do this I have attached a bank charges calculator. What you do is put in the reason for each charge under "In respect of"; the amount under "amount" (told you this was easy); and the date the charge was made - you will see this on the statement - under days since offence. The sheet will calculate the total charges AND the total interest for you. Easy peasy.
  3. be able to show that they should not have been charged. In the case of PPI that you did cancel, and re the charges put them on notice that you dont consider them to be commensurate with costs that were imposed on then by whatever (going over limit, late payment etc)

Re the SAR and getting a defence together, what you want to do is

 

  1. go along to the court (Sheriff Clerk's office) and explain the situation (they should do this - explain you are defending yourself and you just want a bit of advice on procedure) - that you need the other side to fess up re documents and have put in a SAR, but you have no confidence that they will supply them on time, but you need them to create a defence. I think they will say you will need to put in an Incidental Application asking for a delay, and this will need to be served to the Court and the other side's solicitors. They might seek to resist this, but we can worry about that if it happens.
  2. we can work on a defence once the SAR arrives, because the defence is going to depend on what is in there. With luck it will have nothing with your sig on it. In that case the defence is easy - they are in total breach of s61, and s127 (3) prevents a court issuing any kind of enforcement order. We might also think about having the claim declared incompetent as it should aver there is an executed agreement and it looks as if there isnt. If the SAR turns up anything more - we worry about that then
  3. work out how much they have lumped in for charges (unlawful) and PPI (which you have cancelled) and how much they have charged in interest. This is a sort of belt and braces thing - if they were successful then at least it minimises how much the court will order should be paid.
  4. remember that the court will not require you to pay more than you can afford - this might even be £1 per week.

Re-sending? I wouldnt bother. What you have done is as much as can reasonably be expected imo.

bankcharges.xls

Edited by seriously fed up
to add calculator - sorry I forgot
  • Haha 2

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Hi SFU

 

You are a mine field of Information (I hope I can digest all this and help somebody in my position at a later date).

 

As for charges....I am not quite sure how much they add up to as I don't have all the statements I shall have to wait until SAR is received. I have got about 6 statements here just now and they have 2 x £20 charges on each of them making £240 for 6 Statements and I do remeber there being many many more charges.

 

Unfortunately can't get to the Sheriff Court until Tuesday as my Hubby who is not a well man is going for more tests and I have just had a death in the family last night so I shall try and head to Court Tuesday or Wednesday (do you think that is still enough time to get everything up and running).

 

You suggest a Incidental Application to delay the case when would you suggest sending this to the Court & Sols...nearer the time of the return date or hearing date.

 

I have done as you suggested and googled Creation and what I have found has been an eye opener. Still to do more reading I will send you a PM with details of the Sols (to let you know who we are up against) and other bits and pieces hope this is okay with you.

 

As for the PPI I did not realise that I should never have had this as I only worked 15 hours (but didn't know that at the time).

afw

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Charges - yes wait till you get the whole lot, then put them into the excel sheet attached to my last post (forgot to do that last night :oops: ). It will work out the total, and the interest due (at 8% judicial interest so they cant argue)

Sorry to hear about your husband, and the death. Must seem like a very hard time - but it will get better (or this aspect will). Tuesday/ Wednesday will be fine. If you can try getting there when things are quiet - toward the end of the day maybe? Then you are more likely to get attention. Just for info, they will ONLY advise on procedure - you will NOT get any legal advice so dont expect any.

When to put the IA in is a bit touchy feely. Certainly not too soon. but not the last minute. I would say no later than the 21st as even if they come up with the SAR between the 22nd and the 28th you dont have that much time to come up with a defence.

Did you come across this guy in your Google search - Magictorch - The Consumer Forums. See in particular this post http://www.consumeractiongroup.co.uk/forum/store-cards/87083-creation-financial-services-want.html - ok its 2007, but I have checked and he (she?) is still active on the site so it might be worth doing him a pm. Magic Torch should know your enemy better than anyone.

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Thanks SFU,

 

 

Some advice AFW, do not try and overload yourself everyday with this especailly last thing before bed (although this is probarbly the best time)

 

try and allocate some time each/every other day and then leave it at the side so you can try and get some peace. Keep a notebook at the side of the comp for any notes you want to take or write down things that you need to do so they don't keep swimming around your head at night.

 

nip to asda (skool stuff on offer) and get yourself some folders etc to start a file to keep all the stuff together.

 

Ida x


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Hi SFU

 

Did you get my PM, would it help me to let them know what I have or better keeping that under mt hat.....

 

Thank you for listening (or should I say reading) my ranting on I have so much in my head to ask it just swims around in brain (as Ida says) going to take Ida's advice with the notebook next to the comp.

 

Hoping to get to Sheriff Court on Tuesday as Hubby at Hospital Monday and I have a funeral to go to on Wednesday everything seems to come at the same time .

 

I came across magictorch way back in July 2009 I did post a mesaage but he/she never got back to me, however I shall PM them at the weekend again to see if they can help.

 

Will give you a wee bit peace and quite over the weekend as I have a lot or arranging to do with my Hubby going into hospital and having to go to a funeral on Wednesday. Thanks again SFU you are greatly appreciated.

Cheers

AFW

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Hi Ida

 

Thanks for your help I know what you are saying regarding overloading my brain it doesn't take much I can assure you I think all the wee pigeon holes in my brain are full to the brim just now.

 

But I shall take all your tips on board I shall get some Folders and Notepad together and start jotting down as you said"It is all swimming about in my head and I get scared in case I forget something (which I normally do).

 

Normally last thing a night is the only time I can get on the computer for any length of time and by the time I am going to bed my brain is doing henners!!!!.

 

I shall try and chill out a bit at the weekend and give you all a bit of peace.

 

Isn't SFU a pure gem he/she has helped so much over the past few days and it has helped me see things in a different light.

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yes i did, but most of what was to be said i said in the post above.

let's know how you get on when you go to the Sheriff Clerk's office (that's what to ask for), and if you get Magic Torch to get back to you.

When these people contact you it does set you buzzing - me too - i had one mob on today (no signed anything) and its still upsetting. But you learn to live with it.

Hope hubby's news is good

Its no bother. What goes around comes around.

SFU :)

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Hi SFU, Ida

 

Hope you both had a good weekend ?.

 

Went to Sheriff Court today spoke to a clerk, however complete waste of time all he kept on saying is that a small claims summons is more or less self explanatory i.e Return your defence by return date and turn up for the hearing on the hearing date. He did say that I could send in an Incidential Application for Specification of Documents (not quite sure how to do this) to see if they send me any documents. I have already sent letters to Sols and OC for documents last week should I also send this Incidential Apllication to the court........

Also he would not commit to anything I asked him, when I said if I did not receive the documents that I need from Sols or OC could I delay the hearing date he just said ask the sheriff.....so does this mean I still have to turn up for the hearing date even although I have no evidence apart from the letters I have just now. Seemingly there is a In Court Adviser I can phone but have tried since I got home and no joy.

 

I have a funeral tomorrow, also my hubby unwell and now my Daughter has been taken into hospital today and my head is spinning in every direction.

 

I shall try and phone this In Court Adviser tomorrow inbetween funeral and visiting times just to see if they can help me further.

 

How long do you think I should wait to put Incidential Application for specification of Documents to court and do I also need to send one to let them know I do not have anyDocuments from Sols & OC.

AFW

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Yes sometimes you get someone who will be a wee bit helpful with guiding you through procedure. Other times - like this one - you dont.

Re the Incidental application its the word document attached

As you can see its pretty simple - trick is to get the wording right. They guy on here who is top man for this sort of thing is Monty2007 - you might want to PM him. Basically what you need to say is that you have made a Subject Access Request under the Data Protection Act of the pursuers to obtain documents which you will rely on in court, and that you request the court to delay proceedings till these documents have been provided and you have had a reasonable time to consider them. You will need to specify a date, and I would have thought that fifty days after you sent the SAR would be reasonable (ie the 40 statutory days + 10).

 

You will also find the attached pdf useful. Particularly interesting is page 11 (section 4.17 - its actually page 12 if using reader on screen), which tells us that no less than 14 days before the hearing when evidence is to be led. This is not the date of the first hearing - at that hearing you would have to argue that they dont have a s61 1a compliant document so the court's hands are tied by s127 (3). They will contend that they do so another date would be set and no less than 14 days before that second date the other side will have to put their cards (or their documents :D) on the table for you to see and we can structure a full defence around that.

Alternatively, if you go on a wee bit past that there is another procedure that we could use in section 4.18 on recovery of documents, using an incidental application. The document takes you through this - basically you submit the IA to the other side and ask them to offer up the documents to you. If they dont then the court will make a ruling (hopefully in your favour), and the court will then secure the documents. Once they have been provided you can view them at the court (you wont be able to take them away though).

So either way, they wiill need to put their cards on the table.

Questions

1. when to put in the IA for provision of documents - I would say as soon as we can be sure the wording is right - try to contact Monty. There is also some guidance on this (not much though) in the pdf

2. when to make your defence - this is going to be that

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissedlink3.gif

2.The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 60(1)(a) of the Consumer Credit Act 1974 and as such is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.

Did they serve a default notice btw? Dont think I asked this.If not, we can chuck that at them as well.

But it would be good to see their documents first, so lets look at getting the IA in. PM Monty2007 (he sketched out the above which was part of my defence with M&S) in the first instance.

IncidentalApplication-1.doc

small claims procedure.pdf

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Hi SFU

 

Thank you for all this information I am not long back from a family funeral and have not quite had the time to digest it all, did try to get a hold of the In Court Adviser today before I went away but can't seem to get through, but thats my luck, nae luck.

 

I have also tried to PM Monty2007 today but he does not receive PM is there any other way I can contact him to see if he can help me with the wording of the IA the Court Clerk was talking about.

 

I am really a bit emotional tonight (due to the attending funeral today)so I think I shall leave the reading the pdf attachments you kindly sent me until tomorrow in the hope by then my brain will be hopefully a bit more competent and hopefully Monty2007 may see this thread and let me have his expert advice, opinion.

Cheers

AFW

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Hi AFW,

 

CAn you remind me when the defense has to be in?

 

Ida x


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The return date for the defence is 25/8. To be honest its not the defence that concerns me. That will almost certainly be that they dont have a cca compliant agreement that they can show the court and thus 127 (3) applies. On the basis of what AFW has said they dont seem to have anything.

So my concern (paranoia) centres on them producing something on the day of the hearing. To obviate that, she has put in a SAR, but it was only in the last 7 days or so. Therefore they have another nearly 5 weeks to respond. This is why I have suggested an IA to get the hearing - scheduled for the week after the 25th - to be postponed till the documents the SAR produces have been delivered and we have had a chance to consider what difference they make to her case (if any).

Hence my emphasis on the IA. This is heightened by the greater informality of small claims and the emphasis on producing a resolution - they arrive tooled up with statements, a blank application form and a set of t&cs (whether connected or not) and simply argue "lending took place so we want our money". In some ways the lack of formality might be against us? :?:

I would be more than happy to be told that I am being over cautious or even paranoid btw. Just want to be careful and make sure NOTHING goes wrong.

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Hiya SFU & Ida

 

Firstly, SFU thanks for replying to Ida you have got it in a nut shell it is exactly what I have been thinking.

 

I am totally paranoid that on the day they are going to produce something that they have dug up.

 

As SFU said if only I could get them to reschedule the hearing for a later date to give me time to get their reply for the SAR (Which no doubt they are going to delay).

 

It does seem as though they are hedging on the claim as "We lent you the money so pay us Back" as they do not make any reference to the CCA in their claim.

 

I was hoping that I could put in a Incidential Application for a reschedule until documents arrive. Also maybe another Incidential Application for a Specification of Documents as if I did this would it let me know sooner that they did or didn't have original CCA rather than have to wait for SAR to come back.

 

As SFU says "Monty2007 is the top man for wording these IA on here but I cannot get a hold of him. Is there anyway Ida we can contact him to get his attention and see if he would be prepared to help with his expertise. I have tried to PM Mont2007 but he does not acceot PM's.

 

As for the Default Notice SFU, they originally defaulted me in May 2007 on my Credit File but I definately did not receive a default notice at that time. I did receive a Default Notice from Creation in July 2010 3 yeard after default was registered on my file.

 

If anybody has a way of contacting Monty2007 please would they do so on my behalf so that he could put some of his expertise into this thread it would be greatly appreciated.

 

Once again folks many thanks for your help it is giving me a little bit more confidence and spirit knowing that you are out there.

Cheers

AFW

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First of all AFW, this is being worked on behind the scenes, so just bear with us. Time is important but at this point not crucial.

Secondly, dont you be paranoid -I am more than paranoid enough for us both :D. On balance I dont think its going to be determining if you get a successful IA. From what we have seen so far, its going to be for you to go in and say they dont have a compliant agreement so the court cannot issue an order (you might also want to have a crack at them on the way past that they have averred in the POC that there is an agreement but they havent produced it, so is the claim incompetent?).

But to dot the ts and cross the is, I would be happier if we could see their full hand.

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