Yuill and Kyle for lowells served 1a claim old LTSB card Debt

[hariboh]

Received a letter on Saturday from the above people on behalf of Lowell. In 2009 i asked all creditors for a signed copy of cca and none were able to supply me with it so accounts were put into dispute. Never heard much more and they all seem to sell the debt onto different companies until Saturday.

 

Letter reads... we have today served you a summons upon you by recorded delivery post. Should you not dispute the debt then you are now liable to pay sum shown below which includes judicial Expenses and interest. To avoid decree passing against you please return slip below with your remittance. ....finally we refer you to the court document now served upon you which details your rights to make representations to the court and if appropriate to pay the debt by installments.

 

I have no idea who the original debt is with as it doesnt state on the letter and not sure where to go from here

[hariboh]

Received a letter on Saturday (in Scotland) from the above people on behalf of Lowell.

In 2009 i asked all creditors for a signed copy of cca and none were able to supply me with it so accounts were put into dispute.

Never heard much more and they all seem to sell the debt onto different companies until Saturday.

 

Letter reads...

we have today served you a summons upon you by recorded delivery post.

Should you not dispute the debt then you are now liable to pay sum shown below which includes judicial Expenses and interesticon.

 

To avoid decree passing against you please return slip below with your remittance. ....

finally we refer you to the court document now served upon you which details your rights to make representations to the court and if appropriate to pay the debt by installments.

 

I have no idea who the original debt is with as it doesnt state on the letter and not sure where to go from here

[maroondevo52]

Hi,

 

What sort of summons, does it mention any court ?

[hariboh]

Whole letter reads...

 

As you have failed to pay our client's account we have today served a Summons upon you by recorded post. Should you not dispute the debt then you are now liable to pay the sum shown below which include Judicial Expenses and Interest. To avoid Decree passing against you then please return the slip below with your remittance. Failure to do so will mean decree passing against you and our instructing Sheriff officers to recover the principle, juducial expenses and a greater amount of interest along with the sheriff officers fees.

 

Finally, we refer you to the court document now served upon which details your right to make representations to the court and if appropriate to pay the debt by instalments.

 

If you are in doubt of the implications of this communication we would recommend that you contact your solicitor or the Citizens Advice Bureau.

 

 

I havent received any court documents though

[maroondevo52]

Not sure what the score is with that, have you checked your credit file regarding this 'debt'.

[hariboh]

No not yet, will do it tomorrow. Should know more once i find out what this "Debt" is supposed to be for. I have copies of letters sent in 2009 and proof of posting.

[maroondevo52]

Regarding the amount they are looking for, which of these would cover it...........

 

Small claims - debts up to £3,000

Summary Cause – debts £3,001 to £5,000

Ordinary Actions – debts over £5,000

 

I've seen them do this before and sometimes court papers do arrive sometime after the initial letter.

It could be worth your while phoning your local Sheriff Court and enquire if any summons had been sent to you.

 

Also worth having a look at your credit file, Noodle is free.

[hariboh]

Small Claims

 

Great, thanks for your help will check file in the morning

[ericsbrother]

OK you need to ask them what it is about and also ask again for the credit agreement they have failed to produce (copy of original letter if you have it). You can contact the courts clearing centre at Northampton annd ask them if a summons has been issued (presuming copy wasnt with the letter) with your details and if it hasnt make a written complaint to the Courts Service head in Scotland.

If there was no intention to issue a summoms then a complaint to the SRA when you have a better idea of who they really represent.

[hariboh]

Ok, seems its for a credit card originally from TSB then transferred to MHA Colections on 18th November 2009 and then to Lowel l, letter was sent to TSB on the 1st July 2009 requesting a signed CCA which wasn't received. Last payment seems to have been made on the account on 3rd July 2009 according to CC statement but i cant find any direct debit payment on my bank statement for then, last one i can find is beginning of January.

 

Today i have received summons for small claims for hearing beginning of April....not sure where to go from here...anyone any advice?

 

It also says on court letter that default notice was issued on 15th January 2010, i have a default notice from the TSB dated 15th September 2009??

[BRIGADIER2JCS]

The " default notice" issued in 2009 may well have not resulted in an actual default being placed on the account.

 

 

You need to complete the " acknowledgment of service" and state if you intend to defend all or part of the claim.

 

 

There should be a booklet in the claim pack explaining the process.

[hariboh]

Doesnt seem to be a booklet in the claim pack, just the paperwork for the case, anywhere online i can get it. will there be an acknowledgment of service for Scotland, i can only get info for England and Wales

[BRIGADIER2JCS]

Doesnt seem to be a booklet in the claim pack, just the paperwork for the case, anywhere online i can get it. will there be an acknowledgment of service for Scotland, i can only get info for England and Wales

Sorry my error I missed the fact that you are in Scotland

[hariboh]

Sorry my error I missed the fact that you are in Scotland

 

No problem any advice will be gratefully received, been through files and have copy letter of CCA request as well as proof of postage to them....not sure where to go from here

[PRBrown]

You need to decide whether to defend or not. If you are going to defend you need to reply to the condescendence. Something like this might act as a holding action and initial reply - the exact words depend upon what you have received....

 

 

If it's any conciliation this was the initial defence used within the last 2 years that resulted in a decree of absolvitor i.e. they lost. They're not likely to get away with "true copies" in Scotland and a s78 defence will work.

 

 

Check the Scottish Courts site for exact formatting.

COURT REF. NO:-

DEFENCES

in causa

BANK ADDRESS

Pursuers

Against

YOUR ADDRESS

Defender

ANSWERS TO CONDESCENDENCE

 

1. The averments relating to the defender and jurisdiction are admitted. Quoad ultra not known and not admitted.
   
2. It is explained that
   


1. The Pursuers have not provided any documentation to substantiate their claim as craved.
   
2. The Defender did have a Credit Card, card number 0123 2345 3456 4567.
   
3. The account for CREDIT CARD, card number 0123 2345 3456 4567, was in dispute with the Pursuers under s.78(6) of the Consumer Credit Act 1974 as amended. This dispute was the result of a failure by the Pursuers to satisfy a statutory request by the Defender on DATE OF CCA REQUEST under s.78(1) of the aforementioned act asking for details of the properly executed agreement for the CREDIT CARD. Section 78(6) of the Consumer Credit Act 1974 states: “If the creditor under an agreement fails to comply with subsection (1) - (a) he is not entitled, while the default continues, to enforce the agreement”. The Pursuers did supply a photocopy of an application form for a CREDIT CARD account but that application form that did not comply with s.60 or s.61 of the Consumer Credit Act 1974, or satisfy the requirements of s.78(1) of the same Act. The Defender informed to the Pursuers on DATA to inform them of their mistake quoting the relevant statutory instruments, re-iterated the request for the properly executed agreement for the CREDIT CARD, and gave them a further 7 days to respond with the correct information. The letter also informed them if they failed to respond within 7 days the Defender would consider the account to be in dispute and that s.78(6) of the Consumer Credit Act 1974 would be in force. The letter of REMINDER LETTER DATE was not responded to.
   
4. The agreement is regulated by the Consumer Credit Act 1974 and copy certified account statements would be irrelevant as they do not provide proof of a properly executed and enforceable consumer credit agreement. The Pursuers are called upon to produce the original properly executed agreement for the CREDIT CARD (card number 0123 2345 3456 4567.), and the Terms & Conditions in place at the time of the original execution of the account, the last set of Terms & Conditions in place for the account, and all Terms & Conditions as varied between these two periods.
   

 

The Pursuers averments are denied except insofar as coinciding herewith.

 

 



1. Denied. It is explained that the Pursuers have failed to provide any evidence or documentation of the existence of a properly executed and enforceable credit agreement to substantiate their claim as craved.
   
2. Denied that the Defender has delayed or refused to make payment. The Defender wrote to the Pursuers on DATE OF REMINDER LETTER making their position clear with reference to the relevant statutory instruments. The Pursuers averments are denied except insofar as coinciding herewith.
   

PLEAS IN LAW

 



1. The Pursuers, having failed to aver that the agreement exists and is regulated by the Consumer Credit Act 1974, or provide details in their initial writ of the regulated agreement, are in breach of The Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009. Accordingly, the action is incompetent, failing which irrelevant, and the Defender craves that this action should be dismissed.
   
2. The Pursuers averments are irrelevant et separatim lacking in specification, the action should be dismissed.
   
3. The Pursuers, having failed to comply with the terms of s.78(1) of the Consumer Credit Act 1974, are not entitled to enforce any agreement themselves by virtue of s.78(6)(a). Accordingly the action should be dismissed.
   
4. The Pursuers, having failed to comply with the terms of s.60(1), s.61(1) and s.78 of the Consumer Credit Act 1974 and Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), are not entitled to enforce any agreement themselves except by virtue of s.65(1) of the Consumer Credit Act 1974. Further, s.127(3) of the Consumer Credit Act 1974 prohibits enforcement of any agreement by the court under s.65(1) in cases where the agreement does not satisfy s.61(1)(a). For the avoidance of doubt, Section 11 of Schedule 3 of the Consumer Credit Act 2006 states that s.127(3) of the Consumer Credit Act 1974 still applies for improperly executed agreements made before the commencement of Section 15 of the Consumer Credit Act 2006.
   

Accordingly the action should be dismissed.

 



1. The Pursuers, having failed to demonstrate the steps taken to avoid an unfair relationship between the creditor and debtor as defined by the Consumer Credit Act 2006, are in breach of the unfair relationship terms of this Act. Accordingly the action should be dismissed.
   
2. The Defender, not being in breach of any properly executed consumer credit agreement should be assoilzied from the conclusion of the writ and declared entitled in expenses.
   
3. Esto which is denied any sum is due, the sum sued for being excessive, decree should not be granted as craved.
   

in respect whereof

Signed:

Date: DATE OF DEFENCE

YOUR NAME AND ADDRESS

Defender

[hariboh]

Thanks a lot for taking the time to reply and giving me the advice.

 

Do i send this to Yuill and Kyle or the Sheriffs Court?

[havinastella]

Make sure you read and understand it first.

 

Make sure you edit it, so it fits your circumstances.

 

Back to Sheriffs office.

[PRBrown]

Thanks a lot for taking the time to reply and giving me the advice.

 

Do i send this to Yuill and Kyle or the Sheriffs Court?

It's only an example of some of the things you might need to say and the format. What you reply depends entirely upon what you have been sent. If you don't understand the example reply above, or the condescendence you have received, you might want to consult a solicitor.

 

 

It might be best to post what you have received (minus personal details) to get a more accurate feedback.

[hariboh]

okay here goes

 

page 1 form of service, Lowell portfolio against me dated 18th feb ...you are hereby served with a copy of the attached summons, signed sheriff officer(Stirling Park) .... we are instructed in this action by Yuill and Kyle, 79 regent street etc to whom all payments and correspondence should be directed quoting ref no etc...

 

Page 2: Small Claims Summons with Sheriff Court Address, pursuer Lowell Porfolio, Defender ME, Claim: the prsuer claims from you the sum of..... and the pursuer also claims from you the court expenses.

 

Details of the claim on separate paper.....on or around the 2nd December 2004, Llloyds advanced monies to the Defender in terms of an Agreement regulated under the Consumer Credit Act 1974. The defender failed to adhere to the terms of the agreement and, accordingly, a Default notice was issued in terms of the Act on the 15th January 2010 seeking £ from the Defender. The Defender failed to make payment.

 

The pursuers carry out business, inter alia, as a debt purchasing comanywho have place of business at..... The pursuers and Lloyds entered into a debt purchasing agreement on 24th June 2013 in terms of which Lloyds sold this debt to the Persuers. The agreement between Lloyds and the Defender allows for such a purchase agreement. Explained and averred that the defender was advised of said purchasing agreement by letter. There is a total balance due and resting owning by the Defender in the sum of £ which is the sum sued for.

 

The pursuers have requested the defender to make payment of the said sum due but the defender has refused or delayed doing so. This action is accordingly necessary.

 

The defender resided at.... the defenders had been resident there for more than three months immediatley preceding the raising of the action. The nature and circumstances of the defender's residence indicate that they have a substantial connection with Scotland. This ground of jurisdictation of the court is domicile of the Defenders in terms of section 41 or (section 42)of the cival jurisdiction and judgements act 1982. this court accordingly has jurisdiction.

 

the other pages are the options page then the page to say whether i admit or dispute and the reasons to dispute and a time to pay direction and defenders financial position form

[hariboh]

can anyone give me some advice on what to send to the court regarding the above summons received, it all looks double dutch to me

[IdaInFife]

You need to decide first if you wish to defend the action and on what basis

 

or if there is no basis to defend the payment options

[hariboh]

Hi Ida, thanks for the reply,im not even sure what my options are, i send the TSB a CCA request on the 27/8/2009 enclosing a £1 cheque and never heard anything back then sent them 12+2 letter as advised and again never heard anything back other than a copy of the current terms and a letter that states "there is no requirement under the CCA to provide you with a copy of your signed agreement" received a few letters from mha collections in nov 2009 then one from Lowell in sept 2013 and finally one fom Yuill and Kyle at the beginning of this month.

 

Yuill and Kyle were the solicitors acting on behalf of the Clydesdale Bank in apr/may 2009 that took me court and got granted in favour of the bank, i have just finished paying them off which is probably where this is all coming from, but i didnt request a CCA from Clydesdale and didnt dispute

[hariboh]

Anyone any more advice?

 

PRBrown i have been looking at the letter you kindly put up for me to amend and send, im confused with the pursuers part...my original cca request was sent to TSB and this debt only transferred to Lowell recently infact first and only letter i ever received of them was on the 20th September 2013. So where it says the account was in dispute with the pursuers etc do i change that to say the account was in dispute with the TSB?? i know i'm asking really silly questions but i need to get it done and sent and obviously want to do it correctly

 

Thanks

Hari

[IdaInFife]

Its only a small claims so you need to fill in the part where you are disputing the debt and return to the court for the alloted date

 

http://www.scotcourts.gov.uk/rules-and-practice/guidance-notes/small-claim-guidance-notes

 

 

you also need to send this to the persuers

 

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.

 

 

You need to edit as appropriate

 

I would also send TSB a SAR request as well as back up.

 

I would also suggest you look through the threads and read up on small claims to gain an understanding of the process

[hariboh]

Thanks Ida

 

I will get one done tomorrow and send it recorded

 

Thanks for the help everyone, greatly appreciated

 

Hari