Creation/Irwin 1a small claim Summons old BOS then GE Money Joint Loan *WON*

[24233513afw]

Okay SFU - All done and ready to be posted to Pursuing Sols this morning by Special Delivery.

 

Cheers

AFW

 

Couldn't get back on here over the weekend Husband was rushed into hospital Saturday afternoon, glad to say he is feeling a bit better but still not out the woods yet.

 

With all the help and support from SFU, defence all written up and posted to Sols.

 

Now just waiting for Wednesday for hearing. Will let you all know result on Wdnesday. I only hope I can put forward the defence SFU has produced in a manner that the sheriff will have no option but to dismiss.

 

Cheers

AFW

[seriously fed up]

Busy day for you tomorrow - and for me as well at work. Will have a look when I get home, but I am sure you will be successful. Be thinking about you.

[dfsoon]

I've been reading your thread with great interest. I'll be going through what you've experinced in the next few weeks. All the best for tomorrow (today?). I'll be thinking of you. Stay strong.

[24233513afw]

Busy day for you tomorrow - and for me as well at work. Will have a look when I get home, but I am sure you will be successful. Be thinking about you.

 

Many thanks SFU, just having a wee read up before I leave for court, I only hope I can do YOU proud for all the hard work, patience and time you have giving me.

 

Cheers

AFW

[IdaInFife]

chapping at the bit

[seriously fed up]

Me too

[IdaInFife]

I have a PTA meeting - wondering if the school will let me log on to check

 

[24233513afw]

Hi

 

As you will know from the above posts I was in Court today for a Small Claims Hearing against Creation Financial Services.

 

AND GUESS WHAT!!!!!! - WE WON

 

With all his Help, Time & Patience seriously fed up guided me all the way through this case. ]

We cannot thank him enough from the bottom of our hearts from my whole family.

 

When we reached the court it was in full swing with Summary Hearings, then we thought another 30mins or so.....then lunch time court stopped for recess.

 

When I got back into the court room after lunch Creations Solicitor approached me to say they were going to dismiss the case if I agreed......

Then I remembered what SFU told me, as he predicted they might do something like this.

 

I said I wasn't agreeing to a dismissal, I wanted the court to grant Absolvitor (Hadn't a clue what it was till SFU told me) anyway after a few seconds of humming and hawing he agreed. Then guess what I was last to be called 3.30pm.

 

It was the Same Court Room (No.13 unlucky for some) Same Sheriff as the IA HEaring I attended on 25th August and the Same Clerk it felt like De Ja Vue.

 

So thats it final no more from Creation Financial Services.

 

Not quite sure if I should get confirmation from the courts or Solicitors regarding this as I would like to keep the proof of Absolvitor in the file....but will phone court tomorrow to find out.

I shall post all up here in the next few days as all through this my Husband has been very ill and waiting on tests and results so I need to see to him also, please bear with me.

 

If there is anything anybody needs urgently that I can provide please do not hesitate to contact me I shall be only too pleased to forward any information SFU has giving me.

Cheers

AFW

[IdaInFife]

 

 

well done x

 

and to SFU as well - SFU supplied the tools but you took the time to use those tools and read and learn.

 

I am soooooooooo happy for you

[seriously fed up]

Absolutely Ida.

We can offer support/ advice and all the rest, but at the end of the day someone has to go into court and face these people and that is the most difficult part of all. Big cheers for afw.

 

My own take on this from quite early was that there wasnt actually anyway afw should ever have lost this case

- I mean without a signed agreement bringing this action really was quite ridiculous.

 

It verged on abuse of process.

But I was always worried that she would get some dork of a Sheriff who would misunderstand the whole situation, and no matter how well her defence was put it would all count for nothing.

 

But she managed to scare them off with her defence and, indeed by turning up (we had one case a few months ago where apparently the pursuer's solicitor was really quite inconvenienced by the fact that she had turned up in court to argue her case rather than just rolling over. And this was after she had a submitted a defence).

 

Very glad too that she went for absolvitor (and I didnt know what it meant either till Monty told me about it - that's how this site works!) because it means that they cant bring the case back again - EVER. Something to be remembered if you are in court in Scotland and facing the same situation.

 

On a more contentious note,

this type of case really does illustrate the problems of the watering down of the Act of Sederunt amendment between its proposal in August last year and what was actually legislated.

 

In August, the pursuer had to attach a copy of the agreement to the statement of claim, but by November when it was brought into law, they only had to aver this existed.

 

Had the proposal been acted on this case wouldnt have got started because they never had a copy of the agreement.

 

So this poor lady has been dragged through court and stressed (while going through stressful circumstances due to her husband's ill-health) because - I would suggest - the financial community saw the hole that the proposal would blow in their capacity to chase up cases like this.

 

If they dont have an agreement they wouldnt even have been able to get started. :-

 

xNow they only have to make an averment (and they didnt even do that in this case!),

so claim gets made,

target gets so spooked they pay up or come to an arrangement

(because the likelihood is that they will)

but the lender ACTUALLY lacks the capacity to enforce the claim.

This is not good

 

But today we won and we should celebrate that fact. WELL DONE AFW.

[24233513afw]

Morning SFU

 

You are absolutly correct that it should never have gone this far, I can see that now, obviously they thought they would try their hand at poker (as you stated somewhere on here) and that is what this is all about. I am so glad we showed our hand before the hearing (not saying this would work for everyone) but it certainly worked for me, must have had them in a tizzy when they got the copy of the defence on Monday morning.

 

Also as you said it could have been a dork of a sheriff I think that is what I was scared of. I must admit I didn't eat or sleep for the two days before hand and the on the way to the court I did feel like turning back and throwing the towel in. Also due to my Husband being so ill I was struggling as he is my first priority.

 

This will now give me the time to care for my Husband, hoping none of the other creditors raise their heads and try and do the same thing. (Thats another story).

 

We shall be making a donation to CAG, however not until next month, and the month after as I feel this forum needs every penny they can get and I only wish I could give more. It is my Daughter who shall be giving me the money to donate to CAG for all the kind help we have received.

 

You have a great day SFU you thoroughly deserve it and more.

 

Cheers

AFW

 

Hi Ida

 

Love the Cheer Leader.....

 

Is there any way I can alter heading to include Creation Financial Services and that this case has been WON.

 

This would enable anybody else that needs help with CFS would find it. I didn't want to put the name in the heading at first in case they were snooping.

 

Cheers

AFW

[IdaInFife]

how's that

[maroondevo52]

Just to say great stuff, AFW and SFU, well done

 

And not forgetting Ida.

[24233513afw]

Hi Ida,

"Creation Financial Services"

That's Absolutely Perfect.

Many thanks for all your help, without it I hate to think where I would be just now....

Cheers

AFW

 

any thanks maroondevo52,

[beetle1234]

Congratulations afw....you should be very proud of yourself.I know how intimidating attending court can be but you stayed strong and got the right result in the end.SFU ....you did a really top notch job on this one...congratulations to you and Ida too !

[24233513afw]

Have now received a letter and a new copy of CCA from C L Finance. Still not a very good copy but readable with magnifying glass. Cohen now pushing for payment due to phone calls.

 

Please could someone take a look a let me know what you think....Enforceable/Unenforceable.

 

This account was originally with Bank of Scotland, Transferrred to GE Money not long after I took it out, then when I defaulted a few years into it they assigned it to C L Finance in 2008 who now own it.

 

I initally received a letter from Lewis Debt Recovery in 2008 stating they were acting for CL Finance and were advising me that CL Finance had been assigned this account. I have put up a copy of this below.

 

Letter from Lewis

Letter from CL Finance

Copy of CCA (Front)

Copy of CCA (Back)

 

1..However the agreement states an original agreement number and all other correspondence states a completely different account number (Any Thoufhts on this).

 

2. No Cancellation details

 

3. GE Money obviously change the agreement number when it was transferred to them from Banck of Scotland.

 

Any help would be gratefully received.

AFW

[24233513afw]

Thanks beetle1234, it was intimidating but as SFU said just think of them in fancy dress and thats what I did on the day, still felt nervous and without all the help I got on here from SFU & Ida I would never have been able to achieve the result without them.

 

I also went along to court on days I knew that they had cases on and sat through the hearings just to get the feel of it and I definately found it helped me, not saying it would help everyone it would either help or make you more nervous knowing whats coming.

Cheers

AFW

 

Hi

 

I have been wondering as this case has been won through the courts would that allow me to ask Creations to remove default from my credit file, not that it makes much difference as I shall not be applying for credit ever aain and also there is still a few defaults on our file as it is. Its just a matter of principle as they have recorded a default in 2007 (never received a default notice or termination to my knowledge) then sent me another default notice in 2010/

 

AFW

[IdaInFife]

where did you sign this?

 

at home or in the bank?

[24233513afw]

where did you sign this?

 

at home or in the bank?

 

Hi Ida

 

We signed this at home, courier delivered it to house then took it back to bank..

AFW

[IdaInFife]

Those things make it not properly executed under s61(1) of the CCA 1974 and therefore only enforceable by court order under s65.

 

The court's powers of enforcement are defined in s127(3) - a document signed by the debtor and having the prescribed terms. The document in post #1 complies with this - it may not have all the T&Cs but it does have the ones that matter as far as enforceability is concerned (ie the ones set out in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983). It is therefore enforceable.

 

 

nicked from steven

 

this was based on no cancellation rights and missing t and c's

 

maybe sar needed to check the default notcie etc

[24233513afw]

Thank Ida,

 

Can you tell also the agreement has an agreement number on it AAAAAAA, I also have letters from BOS staing that this is the agreement number.

 

However when transferred to GE Money in 2005-6 they must have changed the number as all their demanding letters and threats are for a different number BBBBBB.

 

So now it has been assigned to CL Finance the letters I am recieving from Lewis Debt Recovery and Cohens have the BBBB number on them.

 

Would they be allowed to take me to court for Account number BBBB and produce an agreement with BBBBBBB number.

 

Just a thought!!!!!!

AFW

[IdaInFife]

I think so as many companies have their own reference's when passed to dca's etc.

[24233513afw]

I think so as many companies have their own reference's when passed to dca's etc.

 

This is not a DCA reference number it is GE Money agreement reference which is also stated on their demand letters and statements they must have changed the number when the loan was transferred in 2005-6 which I am told that BOS sold a lot of their loans at that time.

 

The Scenario is:

 

1..2004 - Agreement with Bank of Scotland Agrement Number - AAAAAA (On original Agreement)

 

2...2005-6 Transferred to GE Money 2005-6their agreement number on letters etc .- BBBBBB (Dont know why it changed)

 

3...2007 Defaulted then Assigned to CL Finance, Sending demands with - BBBBB agreement number. Requested copy of CCA in 2009.

 

4...2010 - CL Finance sends me a copy of Original Agreement which I already had with Agreement Number - AAAA

 

So if I end up in court with CL Finance who are demanding payment for agreement number BBBB and they produce a copy of Agreement Number AAAA would this be enforceable.

 

I know this must sound confusing, I am trying to simplify it but its not easy.

AFW

[seriously fed up]

I think you need to understand exactly what you have achieved

- this is to prevent them getting a court order to make you pay up the account

- getting the law on their side.

 

That doesnt make the account go away - it still exists, but they cant enforce it. In practice they will probably write it off and forget about it.

 

But, the one thing they can do is report that the account was never settled, that there was (as far as they will say) a DN issued - put briefly they can damage your credit record and there isnt much you can do to prevent them.

 

Yes, it should all be true and accurate, but in practice

- so I understand from comments of others on here

- the credit reference agencies pretty well always take the view of the lender.

 

You could try, but I think it would be steeply up hill and might not be worth it when you get there.

 

Remember too that the burden of proof would be on YOU this time.

 

How do you prove something didnt happen?

How do you prove they didnt isue a DN?

About the only way I can think of to show that this is possible would be to go through your SAR and see if there is a record of a DN going out.

That would be some kind of evidence if not.

[24233513afw]

 

Thank you for your reply SFU, it was just a wee thought that came into my head when I was going through the paperwork, I am not too fussed about it being on my credit file, as said wont be applying for credit ever again.

 

The fact they can't enforce it through the courts again, will do for us, espepcially at this time when hubby has been admitted again and hopefully procedure being carried out on monday/tuesday.

 

Also there is a few others we need to deal with.

 

Thanks again.

 

Cheers

AFW