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

[24233513afw]

Hi

 

Default Notice is posted in post #8 and the envelope it came in was posted by UK Mail not sure if this was sent 1st or 2nd class mail.

 

Have not sent IA away yet ......will wait until I hear from you regarding the letter I received today.

 

Cheers

AFW

[IdaInFife]

dn in post 8 is compliant - i wonder why they sent another

[24233513afw]

Hi Ida

They didn't send another DN ...I have only ever received 1 DN from them, they defaulted on my Credit File way back in 2007. But this is the first default notice I have ever received from them took the nealy 3 years to send it out.

[24233513afw]

Hi Ida, SFU and other peeps

 

Got the IA all printed out, decided to take it up to the court rather than post it (trying to save the pennies) when I got to the court at 2.30pm the man at the front desk advised me that the Civil Sheriff Clerk Office closed at 1pm today and that they wouldnot open again till tomorrow morning. So tomorrow it shall be another visit to the local court. Also meant to ask last night do I send a copy to Sols as the guy at the front desk said the court has to stamp the one they receive send it back then it goes to Sols ........where as I was going to send a copy to Sols by Special Delivery today but that would be a waste of time and money if they have to get the copy with the court stamp on it.

 

Can anybody confirm this procedure ?

 

Cheers

AFW

[seriously fed up]

Belt, braces, the full lot. Take it to the sols, and get them to sign an acknowledgement for having received it.

[IdaInFife]

no send the copy to the sols as well. then they can have no excuses

[24233513afw]

Okey Dokey.....Copy of IA on its way to Sols by Special Delivery today.

 

Now the waiting begins......seemingly the court shall give me a date before the 1st hearing date to ask the sheriff/judge for the sist and to get the documents from sols.

 

I thought once I put the IA it just went to the Court then the Sheriff/judge made a decisin then the courts sent out the result i.e. new hearing date, to Sols and myself, but according to the the clerk I have to attend on a date before the first hearing to ask sheriff/judge her/himself personally. (What a waste of time money and effort). Taking up a day to ask for something I have already put in writting.

 

Anyway shall keep you all posted what happens next...feeling a bit strange challenging a large company, on saying that this would not have been possible without your help.

 

I have a return date 25/8/2010 do have I have to write out a defence for this date to send to court or do I just return the summons part page 5 Box 3 Dispute of claim:

 

* I wish to dispute the amount due only.

* I intend to challenge the jurisdiction of the court.

* I intend to state a defence.

* I intend to state a counterclaim

 

I intend to appear or be represented in court.

 

* I attach a note of my proposed counterclaim which has been copied to the pursuer.

 

Can I assume that I delete all apart from

 

You can see a copy of the summons on post #1 or #2.

 

Cheers

AFW

 

* I intend to state a defence

and ofcourse I intend to appear or be represented in court.

[seriously fed up]

Okey Dokey.....Copy of IA on its way to Sols by Special Delivery today.

 

Now the waiting begins......seemingly the court shall give me a date before the 1st hearing date to ask the sheriff/judge for the sist and to get the documents from sols.

 

I thought once I put the IA it just went to the Court then the Sheriff/judge made a decisin then the courts sent out the result i.e. new hearing date, to Sols and myself, but according to the the clerk I have to attend on a date before the first hearing to ask sheriff/judge her/himself personally. (What a waste of time money and effort). Taking up a day to ask for something I have already put in writting.

 

Anyway shall keep you all posted what happens next...feeling a bit strange challenging a large company, on saying that this would not have been possible without your help.

 

I have a return date 25/8/2010 do have I have to write out a defence for this date to send to court or do I just return the summons part page 5 Box 3 Dispute of claim:

 

* I wish to dispute the amount due only.

* I intend to challenge the jurisdiction of the court.

* I intend to state a defence.

* I intend to state a counterclaim

 

I intend to appear or be represented in court.

 

* I attach a note of my proposed counterclaim which has been copied to the pursuer.

 

Can I assume that I delete all apart from

 

You can see a copy of the summons on post #1 or #2.

 

Cheers

AFW

 

* I intend to state a defence

and ofcourse I intend to appear or be represented in court.

 

OK,

 

1. When you have to attend court, the argument, as you say is basically in the IA, but you might need to add that your intention is to mount a defence on the basis of no agreement enforceable under the CCA
   
2. You do indeed intend to state a defence - either by the 25th or after that if the IA is accepted - that they have no enforceable agreement and that the court is prevented from issuing an order under s127 (3).
   

Keep us in touch with what comes back in, especially dates, new information etc

[24233513afw]

Hi SFy, Ida & Peeps

 

IA away to Court & Sols by Special Delivery now what do I do, on the 25th August (Return Date) do I need to send in a written defence of some sort or do I just send in the Page 5 stating I Intend to state a defence and delete the rest of the options.

Dont really understand the IA - the clerk said that even although I have sent this in I still have to attend a hearing t before my original hearing date to ask the sheriff personally for the delay(sist) and the documents I require.

What a waste of time I have already told then in the IA why.

 

ANyway question being when do I have to write up a defence as I shall need mega help, just dont have a clue where to start. Any help SFU, Ida, Monty anybody would be greatly appreciated.

 

Forgot to mention, when I was digging around in my bundles of letters I found a letter from the Original Creditor 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 section 78 of the act. We have not sought to enforce the agreement, however, interest continues to run and the debt continues to be payable. There is no provision in the ACt for the debt to be written off and you would still owe us the money claimed".

 

Also a letter stating that I opened the account in 2002 which is strictly untrue. Dont really want to say what year it was but it was not the one they state.

Cheers

AFW

Edited August 15, 2010 by 24233513afw

[MONTY]

Hi SFy, Ida & Peeps

 

IA away to Court & Sols by Special Delivery now what do I do, on the 25th August (Return Date) do I need to send in a written defence of some sort or do I just send in the Page 5 stating I Intend to state a defence and delete the rest of the options.

Dont really understand the IA - the clerk said that even although I have sent this in I still have to attend a hearing t before my original hearing date to ask the sheriff personally for the delay(sist) and the documents I require.

What a waste of time I have already told then in the IA why.

 

ANyway question being when do I have to write up a defence as I shall need mega help, just dont have a clue where to start. Any help SFU, Ida, Monty anybody would be greatly appreciated.

 

Forgot to mention, when I was digging around in my bundles of letters I found a letter from the Original Creditor 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 section 78 of the act. We have not sought to enforce the agreement, however, interest continues to run and the debt continues to be payable. There is no provision in the ACt for the debt to be written off and you would still owe us the money claimed".

 

Also a letter stating that I opened the account in 2002 which is strictly untrue. Dont really want to say what year it was but it was not the one they state.

Cheers

AFW

 

This may help:

 

Should the issue arise where the Claimant seeks to rely upon the fact that they can show that the Defendant has had benefit of the monies and therefore the Defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal at para 26:

 

"In effect, the creditor by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid."

[24233513afw]

Hi Folks

 

Not posted on this thread for absulte ages, however everything seems to be creeping back up on me, a few DCA have raised there ugly heads the past month or so, who I hadn't heard a peep out of fro ages.

 

Anyway CL Finance have come up with a copy of the CCA for the loan however not a good copy obviously microfiche (Can anybody confirm) also Terms & Conditions half cut off am I right in saying that this is unacceptable as a copy. However, extremely hard to read without a magnifying glass

 

Copy of CCA

Copy of Terms & Conditions

 

All my detail and signature was on the CCA.

 

As usual all comments and advice gratefully received, also I have seen a illegible CCA letter somewhere on here but I can't find it, typical when you need something its in a haystack, any pointers would be great.

Cheers

AFW

Edited August 16, 2010 by 24233513afw
duplicating

[IdaInFife]

can't see the cca from link and yes very poor copy as the t and c's are missing bits

[24233513afw]

Hi Ida

 

Try the lnk now it should be working, sorry, brain is full 'o' mince meat just now....the terms & cond. page is terrible I dont know if they are like that on the microfiche or if they have made a balls up of the copying.

AFW

[seriously fed up]

That is a good quote from Monty and one for you to put into a file of notes to take to court with you. The statement in their letter is also pure gold.

I wouldnt worry too much about a defence just yet. Its more than a week (ok only just) before this needs to be put in - lets see what the IA turns up. Basically its going to be something like, "I intend to state a defence that, despite several approaches, the pursuers have never supplied an executed agreement that is enforceable under the CCA 1974. S61 requires that an agreement be signed and contain the prescribed terms. The pursuers have at no time produced anything other than an unsigned application form which contains no presribed terms. Thus they are obliged to seek an order from a Court by virtue of s65 (1). However, since s61 1a has been breached s127 (3) specifically states that a court shall not make an enforcement order". That needs a bit of tidying up - but that is the essence. Monty's quote and their letter can be used in support of this.

My only concern is the emphasis/ philosophy of small claims that the process is about trying to produce an agreement between the parties and only to make a decision if a consensus cannot be reached. IF, your sheriff takes this view - and I would emphasise here that I am taking very much a worst case analysis of this situation - then he might well go into the issue by accepting that lending has taken place and that despite the creditor not having a legal leg to stand on, he should attempt to facilitate an agreement. If that happens then you need to point to the law and that we are all in a court and that they havent complied with their legal duties. It might not make you popular, but if a sheriff did go downroad then he needs to be reminded he chairs a court of law and not a court of morals.

If the sheriff doesnt go down that road, you might well find the creditor's sols do. You will need to knock it very firmly on the head - do they have a piece of paper that allows the court to issue an order? No, well lets get out of here then and waste no more time.

[24233513afw]

Hi Peeps

 

I have PM a few peeps on here with the details and dates of the Incidental Hearing I have to attend at the Court soon. AT this present time I do not want to put too much on here that could, maybe identify me to the other party, so bear with me and I shall post everything up once its all over, which I hope will be soon.

 

Received letter from Sherfiff Court regarding sist and specification of documents got a new date which is very soon to attend court for the Incidental Hearing not quite sure what to expect, has anybody attended one of those hearings, if so a wee bit knowledge could go a long way.

 

Has anybody any idea what would happen if I couldn't attend on the day of the incidental hearing, as my hubby is due to be admitted to hospital near enough on the same day and needs help to get to hospital due to his disability.

I do realise if I don't attend that the sheriff will still go ahead with the hearing, but if this was opposed by the pursuer and I was not there to defend would it be called again under the circumstances that I couldn't attend due to hubby needing to go into hospital (we have waited months on this and considering his case in treated as urgent)

 

Any comments, advice is greatly appeciated.

afw

[seriously fed up]

sorry afw - meant to put this into the pm. As far as I know the procedure is much more informal than the public perception of courts. You will be shown into the Sheriff's chambers - no wigs, no gowns. How informal is going to depend on the Sheriff, but certainly much more informal than a court hearing. You should remind him - if he doesnt ask if you are represented - that you are representing yourself.

Let's know what happens at the court in relation to your IA being heard the same day your husband might be getting admitted to Hospital.

[24233513afw]

Hi

 

Sorry not been around the past day or so my Hubby was admitted to hospital yesterday morning by ambulance so have spent most of my time at the hospital......now I have to try and prepare for this hearing I have this week...not looking forward to this at this stage with my hubby being so ill.

 

Can anybody advise what I should take with me to the Incidental Hearing...should I take all paperwork or just a copy of the IA and a few statements that I might need. Not quite sure if the judge will ask why I want these, if he does do I just state that the documents are necessary for me to comply a defence and the the reply for the delay would also be that I am awaiting SAR from Creations and their 40 days are not up until 3rd Sept amd this would now give me enough time to prepare a defence.

 

Anybody any idea what I call the judge/sheriff ?

 

I have to be there 10.30am I can I assume that I wont be taking at 10.30 and that everybody will have been told 10.30 for other small claims, there seems to a lot of small claims hearing and Summary's and IA on the same day, so I yake it that it will be like a queueing system of some sort and is everybody in the same court/room or do we all get called in seperatly.

 

AFW

[seriously fed up]

OK, there are two things you can do on the 25th

1. simply hand in the form (your 5th jpeg of court documents), striking out the first two options and leaving in that you intend to state a defence and that you intend a counterclaim (for unlawful fees, for whatever they are), and leave it at that. The system doesnt require you to do more than this

2. develop a defence now, put it in and hope it scares them that much that they run off under their stone and dont bother you again. What follows is a draft which I am putting up now so that others can take it apart (eg I am really not sure that one needs this degree of formality - but your experience with the IA suggests that you do)

ANSWERS TO CONDESCENDENCE

 

1.The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted (this is a posh way of saying "we know nothing else and are admitting nothing else).

 

2.

A. It is explained that, there is no signed agreement in existence for the (whatever type of card it is they are claiming for – be it mastercard/ visa or whatever – include the account number there are quoting). The DEFENDER will present a letter from the PURSUERS confirming this in her first Inventory of Productions.

The agreement allegedly entered into on or about (whenever) is unenforceable under the Consumer Credit Act 1974 Section 60(1)(a) by virtue of , including, but not limited to,

1. no credit limit being specified, nor how it will be notified;

2. no details provided about repayments;

3. no term stating the rate of interest to be applied;

4. the document not having been signed by the DEFENDER.

“Therefore s127 (3) of the Consumer Credit Act 1974 applies, specifically that the court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)”.

 

B. During the currency of the agreement, the PURSUER has at various times deducted from the account various amounts of money in unfair charges during the period (from the first charge you can detect to the last one levied). These were in respect of 'charges as notified' (e.g. levied if a cheque payment was late or was returned; or because the credit limit on the account had been exceeded) The DEFENDANT contends that these charges were legally unenforceable

No admissions are made by the DEFENDANT as to the incorporation of any term into the contract between the PURSUER and the DEFENDANT purporting to entitle the PURSUER to levy unfair charges. If the PURSUER is able to establish that the contract did contain these terms, the DEFENDANT will contend that these charges are unenforceable by law, being unfair charges designed to penalise the DEFENDANT for breach of contract and to generate profit for the PURSUER for the actual loss occurring to the PURSUER rather than being liquidated damages designed to compensate the defendant for the actual loss occurring to the PURSUER as a result of the breach.

The DEFENDANT claims from the PURSUER a sum equivalent to the amount unlawfully debited from the Pursuers account from (above period whatever it was) being the sums in the attached schedule. The contractual provisions that permit the Defender to levy such charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), and the Unfair Contract Terms Act (1977) .

3. Admitted but justified as there is no agreement between the parties enforceable under the Consumer Credit Act 1974.

 

PLEAS IN LAW

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

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.

3. The DEFENDANT claims from the PURSUER a sum equivalent to the amount unlawfully debited from the Pursuers account from (above period whatever it was) being the sums in the attached schedule (you will need to work this out, including interest – the excel file I posted will help you do this). The contractual provisions that permit the Defender to levy such charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), and the Unfair Contract Terms Act (1977) .

 

 

Essentially the defence is what we talked about before - what they have sent you might or might not be considered to be a single document so they might be able to say that interest rates etc are all covered in the T&Cs on page whatever, What they cannot do - and what they must do - is produce a copy of this that you have signed, so it should be game, set and match to you. I have reproduced s127 (3) word for word in the defence, just in case the Sheriff has forgotten about it.

The other part of the defence is the counterclaim for unlawful fees. What might be particulary interesting is if the Sheriff determined that he couldnt make a payment order against you because of 127 (3) but that the fees were unlawful so makes an order for them to pay you. Personally if I walked out with no order against me, I would be quite pleased - but you never know.

 

What you need to do is

 

1. put in the details such as account numbers, its starting dates, when they first made a charge on the account and when they last did this
   
2. decide what you want to do - put this in on the 25th (if you have to - the Sheriff might order a delay for them to come up with the goods - or you might not be in court on the 25th) with the simple "i am going to defend; I am making a counterclaim" and go in guns blazing at the hearing. OR do you want to show your hand now in the hope that it frightens them off. Others might want to comment on this. Some advice would be very useful and much appreciated - likewise on the wording of the defence.
   

[seriously fed up]

think we must have been at our keyboards at the same time - me doing the defence and you your post.

I'll address your questions in your just after 22.00 post in order

 

1. i would go tooled up as I said - better to take it and take it home not used, than need it and not have it with you. Take everything that they have ever sent to you. You will need the application form they sent you - its not enforeceable - so first part of your defence, but you want to know what they are going to rely on in court (otherwise how can you put a defence together?) You will need the statements they have sent you - but is this all of them? NOw they (the other side) might look at the application form,. and the statements and snort "stupid wee wuman that you are - of course this is what we will rely on in court". Great - now we know. It also means they cant come up with something sneaky on the day.
   
2. What to call him - Jimmy, Wullie or something (especially if its a woman). Seriously, I think Sir or Madam (as appropriate) will be quite adequate. Remember its not in a court, but in chambers, round a table, no wigs etc
   
3. if you have to be there by 10.30, I would look to get there by about 10.00. Get yourself calmed down and prepared to go in. Just watch out for the other lot's sol - they can be devious. I wouldnt talk about much beyond the weather and whether Hibs will ever be any good with big Yogi as manager!
   

Remember that you are there to talk about the IA. Essentially your case is that what they have sent you to date is not enforceable under the CCA (look at the defence above) and you want to know what they are going to rely on in court - you might want to refer here to the extract from their letter that you included in a post where they pretty much admit that they cant enforce it - but here we are with them trying enforcement. So you want to see what they are going to rely on before you cook up a defence.

 

Forgot to add - IMPORTANT - have you been down to the Court to see what the chances are of the hearing on the 25th being delayed, given your husband's state of health. The answer might be no, but at least the question has been posed.

Edited August 21, 2010 by seriously fed up

[24233513afw]

Hi SFU

 

Yes it seems we were clicking keyboards at same time, as I said in my PM I can't thank you enough for all your help advice and knowledge I shall sit and digest all this tomorrow morning and let you know exactly what route I shall take.

 

The knowledge and understanding of the legal system seems to be very confusing (to me) and I am sure you have spent many hours, days and nights reading to digest all this info and now you are so kind to share all this with me other caggers also for putting most of it in to plain scottish language for me as you have sussed out e.g. "I am really not sure that one needs this degree of formality - but your experience with the IA suggests that you do" you couldn't sat a truer word.

 

Keep on trying to ding your reputation star - but keeps on saying I have to spread it around more - who needs the star your reputation goes without saying**********************many stars.

Enjoy the rest of the evening SFU you deserve it..

AFW

[24233513afw]

Hi

 

Many thanks again SFU for you PM I am now in the process of starting to gather everything together and start tapping the keys to a defence and counterclaim.

 

On the court summons (Posted in Post 8 above) it states on page 5 to delete as appropriate, this may sound stupid but I dont want to make any mistakes, do I that I want to do both - 1. "I intend to state a defence" and 2."I intend to state a counterclaim. would this be allowed or am I only to choose one statement.

 

If I have to state a counterclaim then it states that I have to attach a note of my proposed counterclaim and send a copy to the pursuer. This would be for the charges on the account which if I remeber correctly there was lots and lots.

 

So for the first step (You will have gathered now I need to take this step by step) I take it that I complete the court summons page 5 as below:

 

* I wish to dispute the amount due only. (DELETE)

* I intend to challange the jurisdiction of the court. (DELETE)

* I intend to state a defence

* I intend to state a counterclaim.

 

I intend to appear or be represented in court

* I attach a note of my proposed counterclaim which has been copied to the pursuer. (Do I do this just now or wait for the hearing)

 

Also anybody any idea how to set out a defence statement, headings etc.....

AFW

[24233513afw]

Hi Folks

 

Another wee puzzle to solve if anybody can help....regarding original CCA.

 

I do have a copy of the original CCA but it does not have the same account number they are taking me to court for it has obviously been changed at some point (Cant remember) anyway they state I opend the account in 2002 with account number B....but according to the original CCA I opened the account in 2001 with account number A

 

The pursuers state on one of there letters that I opened an account in 2002 with account number AAAAAA (Which is on the summons) however on checking the original CCA it states a completely different account number BBBBBBB

and was opened in 2001. Obviously this account number has been change since I opened the account in 2001 and now this is the account they are taking me to court for SO

[24233513afw]

Hi

 

Another wee puzzle to solve......The summons does not state an agreement number, but all sols and OC letters do.

I have just noticed that the agreement number that the OC & Sols are stating is not the same number that is on the original agreement.

 

The agreement Number on the original states Agreement Number AAAAAA and the Solicitors & Original Creditors state BBBBBB

and the Original Creditors state that I opened the account in 2002 but according to the original agreement it was opened in 2001.

 

I also know that on the agreement the sols sent the default charges were not the amount stated on my original agreement there is no charge amounts on the original agreement.

If I can hold off until the SAR can produce my statements hopefully this could prove that the blank agreement is not a true copy. Also I know for a fact apart from the original stating I opened this account in 2001 a year before they are stating as my Daughter started to work this company in then and it was her friends signature on the original and she then left to have a baby.

SO THIS MEANS THAT THE ORIGINAL CREDITOR AND THE SOLICITIRS CANNOT COME UP WITH THE ORIGINAL AGREEMENT FOR THE ACCOUNT NUMBER THEY ARE PURSUING AS ONE DOES NOT EXIST. AS THE ORIGINAL AGREEMENT HAS A COMPLETELY DIFFERENT AGREEMENT NUMBER ON IT.

Did not see this in the first instance when I looked at the original agreement also there is no Credit Limit on it if anybody wants to see it I shall PM them.

 

Dont know if this shall make a difference to my defence SFU as they are pursuing an agreement number that I have never signed for that they think I took out in 2002, as the agreement I signed for has a completely different agreement number which I took out in 2001.

 

Also the Blank Credit Agreement the Solicitors sent has 3 different sets of Terms & Conditions.

Edited August 22, 2010 by 24233513afw
Sorry missed some info out!!! Brain going round in circles

[seriously fed up]

Re 16.23, do you have statements that would go as far back as the date when you say the account was opened? Or failing that, do you have a statement for when they say the account was opened (when the balance would probably be £0) showing that the account must have been opened for some time beforehand (eg the balance was +£, and there repayment and interest charged etc)? On its own this might/might not make any difference, but it does cast quite severe doubts on their record keeping

Re 16.35,

 

• in the context of what they have sent to you as "the agreement", my working hypothesis is that indeed they dont have this (its the whole basis of the first head of your defence). They will say "ah we changed the account number". YOU say, "why?" They will say "internal admin". The point is that they dont have anything with your sig on it.
  
• they dont need to state a credit limit (eg your credit limit is £1000) - its enough for them to say how this will be notified to you (sometimes it might say "your credit limit will be at least £x, but we will notify you of the precise amount")
  
• re your defence, you might want to add to it that you dont recognise having any dealings with this company for an account bearing that account number. What do the statements say - do they have a different account number on them? Please say they dont and that the statements have the same number as they are suing you under. If it is different you might be dealing with complete loonies .
  

The key thing is that they dont have a document bearing your sig that contains the prescribed terms as without this, I dont see how they have a leg to stand on. But lets say they came up with a copy of your application form, signed and all, I would still resist on the grounds that its an application form (and thus void under s59) and that while the prescribed terms are in the T&Cs they are thus "included" and not contained in the executed agreement which is the page that you have signed (and thus s61 1a still applies). Not as good as no doc with your sig, but still winnable.

Tbh, I am struggling to see where they are at with this. They dont even have basic evidence - all over the place with account numbers, no sig document and only a "true copy" (of what - they dont even have the right account number). About the only way I can make sense of this is that they hope you will roll over and die before the case - something like 90% of these go through undefended (some might even have less evidence than they have in your case). I heard of one where the OC's solicitors was visibly annoyed that the defendant had turned up - he couldnt believe it. He could believe it less when the Sheriff threw his case out. I would have thought though that with the SAR and the IA they would have got the idea that you know your way about. Strange. I expect we will get a better idea on Wednesday (still suggest contacting the court to see if they will grant a delay, given your husband's state of health)

[LOVETHEBANKS]

Re 16.23, do you have statements that would go as far back as the date when you say the account was opened? Or failing that, do you have a statement for when they say the account was opened (when the balance would probably be £0) showing that the account must have been opened for some time beforehand (eg the balance was +£, and there repayment and interest charged etc)? On its own this might/might not make any difference, but it does cast quite severe doubts on their record keeping

Re 16.35,

 

• in the context of what they have sent to you as "the agreement", my working hypothesis is that indeed they dont have this (its the whole basis of the first head of your defence). They will say "ah we changed the account number". YOU say, "why?" They will say "internal admin". The point is that they dont have anything with your sig on it.
  
• they dont need to state a credit limit (eg your credit limit is £1000) - its enough for them to say how this will be notified to you (sometimes it might say "your credit limit will be at least £x, but we will notify you of the precise amount")
  
• re your defence, you might want to add to it that you dont recognise having any dealings with this company for an account bearing that account number. What do the statements say - do they have a different account number on them? Please say they dont and that the statements have the same number as they are suing you under. If it is different you might be dealing with complete loonies .
  

The key thing is that they dont have a document bearing your sig that contains the prescribed terms as without this, I dont see how they have a leg to stand on. But lets say they came up with a copy of your application form, signed and all, I would still resist on the grounds that its an application form (and thus void under s59) and that while the prescribed terms are in the T&Cs they are thus "included" and not contained in the executed agreement which is the page that you have signed (and thus s61 1a still applies). Not as good as no doc with your sig, but still winnable.

Tbh, I am struggling to see where they are at with this. They dont even have basic evidence - all over the place with account numbers, no sig document and only a "true copy" (of what - they dont even have the right account number). About the only way I can make sense of this is that they hope you will roll over and die before the case - something like 90% of these go through undefended (some might even have less evidence than they have in your case). I heard of one where the OC's solicitors was visibly annoyed that the defendant had turned up - he couldnt believe it. He could believe it less when the Sheriff threw his case out. I would have thought though that with the SAR and the IA they would have got the idea that you know your way about. Strange. I expect we will get a better idea on Wednesday (still suggest contacting the court to see if they will grant a delay, given your husband's state of health)

 

Just to pick on one thing you said. As I understand it an application form with all the required terms would be admissable as an enforcable agreement. Just trying to remember the name of the case where such a thing happened and if I find it I'll let you know.