Charge for payment of money

[elcapitano]

Hi everyone,

 

I have a charge for payment of money that landed on my doorstep whilst I was on holiday and I am now sick to the stomach.

 

Here are the details

 

PURSUER American Express (head office address)

DEFENDER My name (Address I have never lived at)

 

I have never had an American Express account!!!!

 

It says that a decree was granted against me in December 2009 - I never received any details of this. I called the court and they stated the address - it corresponds to the above address of the defender - an address I have never lived at.

 

I have called the solicitors acting on behalf of the pursuer and they are confident that its me because the name and date of birth are the same. I have pleaded with them to investigate this further but they said that everything matches and as far as they are concerned the debt is mine, They are now threatning to arrest my wages or declare me bankrupt as the amount owed is 3 and a half grand.

 

My credit report does not show the decree. I have a perfect report - not a single missed payment for anything, ever! I have 14 days as from the 12th may to pay up or wage arrestment, bankruptcy or god knows what.

 

If they have this charge does that mean that they can go straight to wage arrestment or bankruptcy or can I fight my case in court?

 

Kind Regards

[elcapitano]

Dont know if this matters but the charge for payment of money was delivered through my letterbox but had my neighbours address on it - this is in addition to the mistake already made with the address i never lived at.

 

Cheers

[bluedogx]

You will have to recall the decree ASAP. You can download the info and forms from the sheriff courts web site or visit your local cab. A lot of courts will also have an in court advice service and the court will give you their details.

You will get the chance to tell the sheriff your side of the story as the recall sets the case back to a position before the decree was granted and a hearing date will be set. You must attend court on this date.

 

Good luck

 

B

[elcapitano]

Hi and thank you very much for the response. Will a judge let me recall the decree after all this time? Am I right in saying that the solicitors could just issue another decree? Then I'd be going round in circles

[bluedogx]

You have to have a good reason to recall, but if it's not your debt then you have to do this.

You might be asked why did you not defend the case at the first stages- presumably you didn't get the paperwork?

 

The solicitors can't just issue a decree. It has to go through certain stages. Once it's recalled it goes back to the hearing stages and you can defend on the basis that you don't owe this money.

 

You have to recall ASAP though

[elcapitano]

Ok thanks.

 

Found the forms but not sure how to fill in the part where it says "in this case*"

 

 

 

Minute for recall of decree - service copy

 

Sheriff Court: (place)

 

Court ref. no.:

 

(pursuer) against (defender(s))

 

The *(pursuer/defender) moves the court to recall the decree pronounced on (date) in this case * and in which execution of a charge/arrestment was effected on (date)

 

Reason for failure to appear or be represented:

 

 

 

 

Proposed defence/answer:

 

 

*delete as appropriate

 

 

NOTE: You must return the summons to the sheriff clerk at the court mentioned at the top of this form by (insert date 2 days before the date of the hearing.)

[bluedogx]

I haven't done any myself I'm afraid. I'll have to look it up tomorrow at work.

 

You could pm idainfife as she has more court experience than I have

 

B

[bluedogx]

http://www.scotcourts.gov.uk/sheriff/small_claims/SmallClaimsChapters/Chapter%2022%20actions%20lodged%20on%20or%20after%204%20April%202011.pdf

 

Read this. The sheriff clerk will help keep you right.

 

B

[elcapitano]

Ok so I am going to court tomorrow to recall the decree but i have this question - When a decree is recalled does the judge automatically set another date for the decree to be reconsidered or would the pursuer have to manually set this date themselves after finding out about the recall of decree?

 

One other question - and I don't mean to sound stupid but the only thing I know about court is what I see from the judge and jury dramas/movies! Does the judge have to have absolute proof that this debt is mine or does he have to consider the facts and make an informed decision? The reason I ask this is because I believe that someone used the same name and date of birth as me (coincidence or fraud - it doesn't really matter) to open this account and deliberately avoid paying it. The evidence that the pursuer will show is that someone with my name opened this account - that doesn't prove it was me.

 

I think that some clever person has done a search on my name and date of birth and traced me and thought "it must be him, we'll chase him for it!"

[bluedogx]

Assuming the sheriff agrees to the recall another hearing date will be set.

 

At the hearing you will put forward your defence, and yes the sheriff will have to be satisfied that you owe the debt before he will grant another decree.

 

Please try to find an in court adviser to assist you. You have to listen very carefully to the sheriff as he will almost certainly help guide you but won't be able to tell you outright what to say or ask. If you feel it's going your way ask for the case to be dismissed if the sheriff doesn't actually say this himself.

He may very well continue the case fir more info to be submitted to him.

 

Make sure you are clear and concise in your presentation

 

B

[elcapitano]

Ok so I have handed in the forms to recall the decree.

 

A few more questions though..

 

1- Do I have to show up in person to court or can I send a representative?

 

2- If the sheriff decides in favour of american express and the decree is granted again, will I have to pay the original decree amount or do I have to pay the interest that has accrued since the original decree?

 

3- If I wanted to settle this and make amex a full and final offer and they accepted before the court date, would we just inform the sheriff? I'm trying to get a mortgage ASAP and I'm seriously considering just paying this to get rid of it and be happy in a house with my partner!

 

Again thank you to everyone who helps - there may be more questions!!

[bluedogx]

1. It's better to be there yourself. Not going suggests indifference.

 

2. I'm not sure about that one

 

3. If you have enough money to settle then maybe you should. If the decree is recalled, then you settle while there is no decree against you, you might fare better with a mortgage application.

You would probably still have to go to the hearing to inform the sheriff of the settlement and make sure Amex don't do anything sneaky

[clarrabell]

Thanks bluedogx

 

I will go to the hearing settlement or no settlement.

If Amex have their money do you think they would even bother showing up to the hearing just to tell the judge it was settled? I'm really hoping they don't so I can kindly ask the judge not to reissue the decree, even if satisfied. I could just ask him to bin it altogether (don't know the legal term) after all I would have settled a debt that isn't mine!

 

Please also correct me if i'm wrong but I understand the following to be true -

 

I have recalled the decree so no action can be taken against me until a court date has been set and the judge has decided.

 

If the account is not mine would I still be able to contest the debt on the grounds that it is unenforcable without admitting the debt is actually mine because they might have made a mistake in the paperwork.

[bluedogx]

Ok. Just re read first post. if the debt is not yours then do not settle!

[elcapitano]

OK so i'm not going to settle - will just wait on a court date being sent to me from the judge.

 

From what I've read on this forum the next step would be to SAR American Express.

 

When I spoke to Amex's solicitors I asked if there was any photocopies of ID from when the account was setup and they said that no ID was taken when the account was setup. Is that even legal?? Any credit card I've ever opened has always demanded 2 forms of ID. How can they possibly take someone to court on the basis of a signature on an application form and nothing else??

 

Kind Regards

[bluedogx]

Yes I would get as much info as possible from them. They need to prove the debt is yours.

Do you have a recent credit report?

[Surfer01]

If you cna prove you never lived at the "other" address, i.e. council tax it may help your case.

[elcapitano]

Amex told me that the offer of full and final settlement was withdrawn and that only the full amount will do now. This does worry me now.

 

Yes I do have a recent credit report which does not show the decree or American Express account.

[Surfer01]

A recent credit report should also show that you have never lived at the other address.

[LostAtSea]

Do go and speak to the in court advisor. They know the system and the Sheriffs and can accompany you on the first calling. These financial institutions could not give a fig as to whether or not the debt is yours. All they want is their money. You'll need to dig out proof of where you were living at the time of the summons being issued and for when you were supposed to have entered the agreement with Am Ex. If you don't have anything you can ask the council for copies of council tax bills or banks for statements etc. Do as much work on this as you can now so that your not rushing about later. You will need to check credit reports from Experian, Equifax and Call Credit to be certain there is nothing in your name.