Scottish Court Citation received - marlin on very old Egg debt

[mcg68]

Good idea. Thanks

 

Will keep you posted on progress. In your opinion dx - should I consult a lawyer/solicitor at this stage?

 

Cheers!

[dx100uk]

i'll be honest and say i'm not one of the greatest at all at legal stuff on here

 

not my bag

 

but

 

9/10 there is no need for any sol help or rep.

 

you can get everything by reading here and following given advise

[but not mine !]

 

dx

[spamheed]

I was under the impression that in Scotland anyone wishing to bring such a claim would need to first have ownership of the original agreement - is this not the case?

[mcg68]

Thanks Spamheed, I'd be interested to know if that is the case.

 

Can someone please help me out a bit further here.

I have sent off the CCA request and the SAR as mentioned above and am still waiting for the responses. I am now getting worried as I need to respond to the court citation one week today (29th May) and I need to decide if I am going to defend the case, a decision I guess I can only make if I don't receive the CCA by that date.

 

I have checked on my Experian credit report and there is no mention of this account, not even listed as a default or delinquent account so I guess this must mean that there is no proper/legal CCA out there or surely it would be there as a bad debt?

 

Is this significant and does it have any bearing on how any court proceedings would progress?

 

Thanks!

[dx100uk]

I would suspect they'll not have a cca, game over.

 

what day did you send the cca?

 

 

dx

[mcg68]

Thanks dx. I sent both on Friday 10th and they were both signed for on Monday 13th. I totally forgot that this weekend is bank holiday weekend so have lost a few days there too. If this was you, would you send the court papers back saying that you are going to defend the case?

 

My nightmare scenario would be that I defend and lose and have the legal bill to pay for over and above the alleged debt. Hardly sleeping this week because of it.

 

M.

[dx100uk]

at the end of the day if you don't defend all

you'll get a CCJ.

 

i'd be basing my defence on no paperwork.

 

no NoA

no default

etc etc

 

dx

[mcg68]

Never thought of the CCJ if I dont defend. OK, I am going to send back the court papers in the next day or so stating my intention to defend the whole case. Do I need to get a Solicitor to help?

 

If I notify them I am going to defend and there is no CCA, are they likely to drop it anyway and if so, what happens next? Surely they wont go to court with no paperwork, CCA etc.?

 

M.

[mcg68]

Can someone please give me some URGENT advice/encouragement.

Today i went to seek some advice from the CAB who said I should just admit the debt and seek a time to pay order, thus incurring a CCJ (or a Decree as I am in Scotland).

 

I have found letters from the original DCA (CapQuest) from 2009 after I sent them the Account in Dispute letter where they say they are no longer dealing with the account and all future correspondance should now be made via Egg as they had passed all the files back to them - basically they must have dropped it knowing there was no CCA. I think that this might be when the record came off my Experian Credit Report.

 

So, I now have to tell the court by tomorrow if I intend to defend or pay up. My question so that I am clear on what I am defending on is...... Is the lack of CCA and other paperwork good enough grounds for defence? Can a judge/sherriff rule that as I ran up the debt and don't deny that the card was mine, I need to pay up regadless of the fact there is no forthcoming CCA??

 

Thanks,

M

[dx100uk]

no he cant

 

they must have the CCA.

 

how the time limit on the cca going.

 

dx

[mcg68]

I think it might be today or tomorrow depending on how they count Bank Holidays. They signed for the letter on 13th May. In your opinion dx, should I still be defending. Felt very deflated after speaking to the CAB. Wish I hadn't bothered actually.

[dx100uk]

yes defend all

 

no paperwork

 

if your defend part, you'll still get a decree. etc

 

dx

[spamheed]

I think it might be today or tomorrow depending on how they count Bank Holidays. They signed for the letter on 13th May. In your opinion dx, should I still be defending. Felt very deflated after speaking to the CAB. Wish I hadn't bothered actually.

 

In fairness to the CAB, they are run by volunteers and due to cuts and the like they are not really in the best position these days to offer advice on all of the subjects they used to cover, they tend to do their best work with benefit related issues and basic consumer advice.

 

You really need to get a clear understanding on what basis you are defending this case, if you go into court without a clear idea then you will lose and you will most certainly end up with a CCJ.

 

Marlins may well have bought this alleged account, but if there is no supporting paperwork at all, then they are up the creek, this does not mean that they will not "tell a good story" and try to convince you that you have no chance, when the opposite may well be true.

 

Marlins must be able to produce a clear paper trail covering all aspects of each transfer of this account, from inception - to date because without it, you and they are unable to verify anything about the debt.

 

How do you know the agreement is valid in the first place

or even if there is an agreement?

How do you know they have a legal right to collect this alleged debt?

Was an assignment produced? where is it?

How do you know the amounts claimed and dates stated are correct?

 

The CCA is paramount because it then protects you from any enforcement action whilst the CCA is outstanding, so basically without the agreement they cannot enforce.

 

sorry for the rant but you are a long way from court just yet.

[mcg68]

sorry for the rant but you are a long way from court just yet.

 

Thanks spamheed, I know what you're saying about the CAB, and I appreciate the help they tried to offer and I'm sure they help thousands of other people with their various problems, but it wasn't the help I was looking for to be honest. And I agree, I need a clear understanding of what I am defending and on what grounds. Which is why I spoke to a solicitor today and he advised me to defend and see what happens. With the various correspondance I have, I think I have a fairly good chance of defending but only time will tell.

 

If the CCA doesn't appear in the next few days (they signed for the request on 13th May) am I within my rights to send another "Account in Dispute" letter to Marlin and if so, what would that mean as far as legal proceedings go?

[IdaInFife]

Hiya,

 

Ok first can we see what they have wrote on no 4 and no7 of the citation? or can you type these up?

 

Can you stated what it says for the return date and calling date?

[IdaInFife]

Please double check you read any other posts and we may cross as i add to your thread:

 

You need to fill this in with your details and send to the sols:

 

In the XXXX Sheriff Court

Pursuer -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

 

Dear Sirs

 

REQUEST FOR INFORMATION

 

I have today received a court claim from your firm as referenced above. In order to file a defence and counter claim I require some further information from you. Given that this matter is now the subject of legal proceedings, I request you to provide me with the information and documents detailed below.

 

I request that the information should be furnished within fourteen days of the receipt of this letter. If you fail to comply, it may hamper proceedings and result in me filing an unnecessary defence or counter claim.

 

1. You are requested to supply me with a true copy of the executed credit agreements to which you refer to in your claim together with any terms and conditions that applied to these accounts at the time they were opened and at the time of alleged default. In this respect, your attention is drawn to the compliance of such documentation as prescribed under Section 78(1) of the Consumer Credit Act 1974 (herein referred to as “the Act”).

 

2. All records you hold on me relevant to this claim, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your firm.

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with American Express Services Europe.

 

c. True copies of the default notices.

 

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

h. Copies of statements for the entire duration of the credit agreements.

 

3. Any other documents you seek to rely on in court.

 

I must advise you that if the information is not forthcoming, it may delay or frustrate the equitable resolution of this matter and result in unnecessary cost for both parties.

 

In relation to the above, I draw to your attention to my previous correspondence with your Client and the numerous agencies that they have instructed in relation to this matter.

 

Your Client has not fulfilled their obligation under Section 78(1) of the Act. The documents previous provided to me under a Subject access request do not conform in form or content to Section 60(1) of the Act and as such are not enforceable under Section 127(3) of the Act.

 

I also refer you to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it must embody within the agreement, the prescribed terms laid out in the SI1983/1553.

 

Your attention is brought to the fact that I have requested such documentation from your Client and their agents in relation to this matter. Should your Client continue with this action this documentation will be brought to the attention of the Court and my previous attempts to avoid legal proceedings.

[IdaInFife]

Here is some reading for you and will give you an insight as what the process entails:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?291077-hfc-bank-Court-Papers

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?180427-rrfcfan-in-court-with-WF-All-on-again

 

Also what would be beneficial to you if you can visit a local law library :

 

1.Civil Procedure & Practice Charles Hennessy which is good on procedure and easy to read

2.Practical Advocacy in the SheriffCourt excelleant on what happens in court and how to do it.

3.Macphails Sheriff Court Practice a useful more detailed addition to books 1 and 2.

 

or dependant where you are you may have a local law centre?

 

They need the agreement to go ahead so that is your defense

[dx100uk]

I like that 2nd link F-ALL on again:lol:

 

dx

[mcg68]

Hi Ida,

 

Thanks for your replies. On the writ, I don't have a form 04. The writ says :

You (me) are hereby served with this copy writ and warrant, together with the following forms:-

Form 03 (application for time to pay irection); and

Form 07 (notice of intention to defend)

 

It then goes on to outline the 3 options available to me, either pay in full to avoid a court order being made, apply for a time to pay direction which would then result in a decree (I think) and the final option, to defend the claim.

 

I will need to adjust a few things in the template you have posted above and send it off. On the writ it says "A copy of any notice of intention to defend should be sent to the Solicitor for the pursuer at the same time as your intention of notice to defend is lodged with the Sherriff Clerk"

 

Should I use the above letter with the copy I send to them?

 

Also, just to be clear in my own head, today is the 12+2 day CCA request deadline for Marlins to provide me with the CCA after my formal request sent to them on 10th May. Should I now send them an Account in Dispute letter?

 

Thanks,

McG

[dx100uk]

if its 12+2 working days today then yes.

 

http://www.consumeractiongroup.co.uk/forum/content.php?436-Failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

 

dx

[IdaInFife]

Hi Ida,

 

Thanks for your replies. On the writ, I don't have a form 04. The writ says :

You (me) are hereby served with this copy writ and warrant, together with the following forms:-

Form 03 (application for time to pay irection); and

Form 07 (notice of intention to defend)

 

It then goes on to outline the 3 options available to me, either pay in full to avoid a court order being made, apply for a time to pay direction which would then result in a decree (I think) and the final option, to defend the claim.

 

I will need to adjust a few things in the template you have posted above and send it off. On the writ it says "A copy of any notice of intention to defend should be sent to the Solicitor for the pursuer at the same time as your intention of notice to defend is lodged with the Sherriff Clerk"

 

Should I use the above letter with the copy I send to them?

 

Also, just to be clear in my own head, today is the 12+2 day CCA request deadline for Marlins to provide me with the CCA after my formal request sent to them on 10th May. Should I now send them an Account in Dispute letter?

 

Thanks,

McG

 

 

Sorry I forgot was ordinary cause so can you post up what its say at Condescendence and pleas in law?

 

You will need to send the intention to defend to the court and the sols by the return date ,,,when is that?

 

This will need to include that you have disputed the debt before and have no had any reply to request of documents and you have issued the sols a request for information at then this stage you will be able to enter a full defense once you have received the information.

 

You need to get the request of sharpish

 

Forget about Marlins now as this is now of no consequence as the court action has been raised

 

[mcg68]

Hi again,

 

I lodged my Intention To Defend on 29th which was the deadline day and paid my £87 court fee. Over the weekend I received an "Intimation Of Options Hearing" with various dates on a timetable, the first of which is 12/06/13 - Last day for lodging defences.

 

After I went to court with the Intention To Defend form, I went with a copy to the other Solicitors office and handed it in with a letter (from the template posted by Ida above) stating that I had put the account in dispute on 31/08/2009 and asked for all the information as itemised in Ida's letter.

 

I am today going to send another "Account In Dispute" letter to Marlins as they have not responded to my CCA request dated 9th May which they signed for on 13th May and allowing for all bank holidays haev now surpassed the 12+2 period.

 

Are they still obliged to supply the CCA after they have started legal proceedings against me and just to clarify, am I still entitled to put the account in dispute now the legal process has started?

 

I have also spoken to a lawyer who is happy to defend me but the earliest I can see him is next Tuesday - just 1 day before the last day for lodging defences. Cutting it a bit neat but not much I can do about that.

 

My other question is this. I asked the Solicitors defending Marlins to supply me with all the info that they will be relying upon in court so that I can form the basis for my defence. Are they legally obliged to supply this and if they don't, how can I defend? Is the fact that they may with-hold info helpful to my defence?

 

I am going to post some questions on the Scottish Law forum just in case the law differs up here from the rest of the UK. Thanks for all the support so far. The date of the Options hearing is August 1st so hoping that the CCA still doesn't materialise before then.

 

**Editing to add this** I just read on another thread someone saying that Egg couldn't have issues a default notice as there is no default on their credit file. Bearing in mind there is no default on my credit file relating to this account, does this mean they have not issued a default notice to me? And if so, how can they be taking me to court??? No CCA, no default notice? As I said way back in the beginning of this thread, I honestly dont know if I received a default notice so maybe the fact there is no default on my credit file proves they never sent one.

 

Cheers

M

Edited June 3, 2013 by mcg68

[dx100uk]

if your questions are related to this thread, i'd post them here else it will get very disjointed

or post a link to this thread on you new ones advising to reply here please.

[mcg68]

if your questions are related to this thread, i'd post them here else it will get very disjointed

or post a link to this thread on you new ones advising to reply here please.

 

Yeah, I changed my mind about that dx, I forgot that the thread title says Scottish Court so I amn't posting anywhere else. Thanks

[citizenB]

As part of the Statutory Default Notice advises that unless the breach is remedied they will report to the Credit Agencies, then you would have thought that they would have done so. I think the Information Commissioner advises they must do this within 6 months if they are going to.

 

I am not certain of the Scottish legal system, in England, they are obliged to respond to CPR requests for information - if not, then this information can be requested again at Allocation stage and also disclosure can be sought by way of application to the court.