Unknown Debt and Court Action Started - Urgent advice needed

[alan651]

Hi All,

I will keep this brief and elaborate later if required.

 

I received a letter from Shoosmiths Solicitors (Northampton office) on 29 April 2014,

stating that they were acting on behalf of their client Marlin Europe II Ltd to recover a debt of £8675.25 and that I contact them immediately.

 

I was unaware of any debt due, unaware of Marlin Europe II Ltd and no idea what was going on.

 

Obviously I was shocked by the amount and

wrote to them on 30 April 2014, requesting information on the debt, using the standard "prove it" and

also requested that all legal process and collection enforcement be suspended until the information was received.

The letter was sent recorded delivery.

 

Since then I heard nothing until Saturday when I received a citation from Haddington Sherrif Court. (Scotland).

 

I really need some advice on my next step as they (Shoosmiths) have obviously ignored my information request and ploughed ahead with court action regardless.

 

I have 21 days (18 now) to defend this action, but this is impossible if I have no information on the debt to base a defence upon.

 

I have no idea where to turn now,

 

do I:

Write to Shoosmiths, who's address on the citation is now their Edinburgh office and request information again?

 

Write to the court and explain I cannot submit a defence as Shoosmiths have not given the requested information and I cannot build a defence on nothing?

 

Really pushed for time on this one, any suggestions would be appreciated.

 

Thanks

[Crocdoc]

Write again make sure you record the delivery and keep copies, make reference to you previous correspondence.

If they fail to provide details appear at Haddington Sheriff Court and provide proof that you have requested details from the pursuer INCLUDING THE ORIGINAL AGREEMENT and they have failed to provide the requested information.

 

You can then move for continuation (6 weeks or so) to obtain details from the pursuer.

 

In any civil action it is up to the pursuer to prove that a debt exists and not the defender's to prove otherwise.

 

I hope this information is of assistance

[alan651]

Thanks for the reply.

I have requested the information from the pursuer on 10 June, a copy was sent to pursuer sand their solicitors, both by recorded delivery and both signed for on 11 June.

Also, I requested that the information, (original agreement, default notice, correspondence etc) was returned to me within 7 days of receipt of letter being received.

 

To date, no reply from either party. This was the same response I received when I sent the original letter on 30 April and then they still lodged court action.

As the return date for the court, either accept or defend, if this Friday 27th, I am getting a bit worried as to which way to respond.

 

I obviously cannot submit a defence as I don't know what I am defending due to lack of information and this worries me.

 

My intention was to write again to Shoosmiths and request why the information has not been sent, but given the timeframe I suspect they would delay or ignore again.

 

Could it be that they have not got the the required information and are calling my bluff to accept the court action, through my ignorance of the legal system.

 

Is my best option, as advised above still to contact the court, explain what I have requested and the outcome of the request.

I certainly can't lodge a defence and pay £90 to do so, without any information.

 

Thanks again

[Crocdoc]

If you are not aware of what the claim relates too, you cannot defend other than deny liability , however if the pursuer fails to provide you with evidence they intend use to support their claim this can be explained to the court and of course you can provide copies of the correspondence requesting the information. The court will almost certainly grant continuation in this circumstance and insist that the relevant information is provided.

 

I would attend and simply explain the situation to the Sheriff and provide all your letters. You will find that Sheriffs are very understanding in this situation, it is not their intention to intimidate you in any way.

[AndyOrch]

Hi alan

 

I appreciate you are in Scotland and the system differs from England but if you could read and complete the following....this will assist with any advice that can be offered.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**(2-Viewing)-nbsp

 

Regards

 

Andy

[alan651]

I phoned the Sheriff Clerks office this morning and explained the situation regarding receiving no information from the pursuers or their solicitors.

 

 

I was informed that the return date for a response from myself is on Friday 27th June, this is not a hearing date and I will not have to attend court, this is only the latest date that one of two forms can be returned.

 

 

They basically said that I have 2 options:

1. Accept the claim and send in the time to pay direction, which will be offered to the pursuers, if accepted the Sheriff will issue decree and payment schedule.

2. Defend the claim, which will cost £90 and will call in court in approx 10 weeks.

 

 

My worry now is, that since I have not seen or received any information about the debt, credit agreement etc, I have no idea what I am up against in order to make a defence.

 

 

Getting worried now, given the time period left, as to which way to go.

As there seems no way to inform the court that the pursuers are basically ignoring me.

 

 

This all seems like a bit of brinkmanship on the part of the pursuers and their solicitor. Withholding information with the notion that it will bully me into accepting the claim as I have nothing to go on.

 

 

If I submit a notice to defend on Friday 27th and say next week the pursuers come up with all the paperwork, where do I stand then?

Can I go back to the court, withdraw the notice to defend and submit a time to pay direction?

 

 

Any ideas welcome Thanks

[alan651]

Hi Andy,

 

 

In response to your request:

 

 

Name of claimant Marlin Europe II Ltd

Date of Issue 06/06/14

Value of Claim £8365.28

Reason for claim Non payment

Claim for Not specified as current or credit/loan account or mobile phone account ( the only reference is to LLoyds TSB Bank)

Entered agreement I have not entered any credit agreements since Jan 2006 as I was unemployed up until Dec 2008 and kept clear of credit

Original / Assigned Debt assigned to Marlin Europe II Ltd (debt purchaser) from Lloyds TSB

Marlin Europe II Ltd is pursuing debt via Shoosmiths solicitors

Account Assigned I was not aware that the account had been assigned

Default notice I am not aware of any default notice from Lloyds TSB

Notice of Default Sums Never received any yearly notices

Ceased payments Unemployed

 

 

CCA1974 request already sent to claimant - No reply

 

 

If you require any further information please advise.

 

 

Regards

Alan

[alan651]

Just had a thought on this claim:

 

I was unemployed from Jan 2007 until Dec 2010, then employed part time up until May 2012, when I then started full time employment.

During this period (2007-2012), I was barely able to make ends meet, far les make payments to anyone.

I have not has any credit agreements since 2005 (car HP 2005- Close Bros- balance cleared by parents in 2007), due to my employment status.

I have also not admitted or acknowledged any debt or claim to debt in the past 8-9 years.

 

I did have a lloyds account from 1998 - 2007, but this was closed by Lloyds in 2007, as it was a current account which required £1000 minimum payed in each month to receive free banking etc. as I was not paying in the required amount, they closed the account and sent me a cheque for £1750 (approx) as the closing balance.

 

Given the above information, I believe that any claim made now might be statue barred:

1. I have not accepted or acknowledged and debt in writing or otherwise in the last 7 years

2. I have not made any payments or promise of payments in the last 7 years

3. I have no outstanding decrees for the above claim

 

Statute Barred debts in Scotland have a 5 year limit, I have been informed.

 

Looking back through old paperwork I did have a lloyds loan in 2003 for £4500, but this was paid monthly until I became unemployed in 2007.

If there was a balance remaining on this loan, why did lloyds send me a cheque in 2007?

I have not heard from lloyds since 2007, still at same address etc.

 

Could this be an old debt sold by lloyds to marlin that is now statute barred, hence the silence from shoosmiths, in the hope that I will accept the claim?

 

Looks like my only option is to defend the claim and submit Form 07 to the court on Friday, with my £90 and see what ammunition Shoosmiths have.

[dx100uk]

try checking you credit file

 

might throw some light

 

dx

[alan651]

Hi,

Submitted Form 07 (notice to defend) last Friday at sheriff court.

 

Action by the sheriff clerk on receipt of a NID (court form O7)

On receipt of a Notice of Intention to Defend (NID) in the sheriff court, the sheriff clerk will fix a date and time for an options hearing .

The sheriff clerk will also send a notice to both the pursuer and defender advising

 

the last date for submitting defences (that is 14 days after the expiry of the period of notice)

the last date for adjusting pleadings, that is 14 days before the options hearing ( DMBM680090)

the date of the options hearing.

 

Requirement for defender to lodge his defence in court

Once the defender has lodged his Notice of Intention to Defend (NID) with the court, he must lodge his defence with the Sheriff court within 14 days after the expiry of the notice, in accordance with the Sheriff Court Ordinary Cause Rules.

 

I have now received letter with timetable on defence, hearing date etc.

My next step is to submit my defence by 14 July and I could do with some advice on the following:

 

Draft letter / format for submitting my defence.

 

Any advice would be greatly appreciated.

 

Regards

Alan

 

I am aware that I have to use numbered paragraphs which correspond with the original writ, stating either agreed, not known, unaware etc against each number.

I don't want to slip up and let them away on a stupid legal mistake.

Also I submitted a CCA request to Shoosmiths with the required fee and I still have not received a reply, despite the time period expiring. Do I mention this in my defence or save it for later and just stick to the basic response for now?

[alan651]

Quick update on my progress

 

Submitted defences on 14th July and have to wait until 11th September before any further action is required court wise.

 

However, I submitted a CCA request on 20th June and today, after 7 weeks (49 Days) I received a reply from Shoosmiths.

 

The letter states that the debt refers to an overdraft with Lloyds TSB and as related to an overdraft, there is no regulated agreement which requires to be produced in accordance with the consumer credit act 1974 and they have no credit agreement to produce.

 

They have now instructed their client to order the relevant statements for the account and will forward once received. No date or time period indicated.

 

What I cannot understand is that in the initial writ, Shoosmiths stated in the condescendence:

 

Para 2 "Agreement was entered into and arose by virtue of the defenders contract with Lloyds TSB Banking Group as herein after condescended upon. A copy of the AGREEMENT will be produced in any defended process to follow heron."

 

Para 3 "The said contract between LLoyds Banking Group and the defender is a CREDIT AGREEMENT in the terms of the Consumer Credit Act 1974 ("the Contract"). The total debt balance which has accrued under and terms of the Contract amounts to £8537.50 conforms to copy statement of account which will be produced in any defended process to follow hereon"

 

They state in the writ "A copy of the AGREEMENT will be produced in any defended process to follow hereon".

Now they are stating there is no regulated agreement to produce?

 

They also state in the writ " The said contract between Lloyds Banking Group and the defender is a CREDIT AGREEMENT in the terms of the Consumer Credit Act 1974 ("the Contract").

Now they are stating that the Contract has no regulated agreement under the CCA 1974?

 

Can anyone please advise if by making statements within the initial writ that are "dubious " is incorrect and can this be stated in amended defences to court?

 

If I had accepted their statement within the initial writ, as to them being able to produce an "Agreement", I may have been inclined not to defend and accepted debt.

Surely this cannot be legal if they are making statements within the writ which cannot be upheld, but have the effect of "scaring" the defender into accepting the claim.

 

Any advice on how to proceed would be appreciated, especially on the delay aspect of the CCA request etc, as this is delaying any defence which may be relied on in court on 11 September.

Also on the wording if the initial writ, if incorrect, can I request any action by the court?

 

With regard to the debt in question, I had an overdraft on a current account for £2500 in 2007, but as Lloyds closed the account and sent me a cheque for £1750, I could only assume at the time that the balance on the the account had been cleared before cheque was issued.

Given the sum sued for now £8.5k, there must be some horrendous charges/interest contained within??

 

If the account has been closed in 2007, I cannot see how an attached overdraft to the account can be continued as a separate entity.

 

Any advice as to the wording in the writ and delay in CCA request would be helpful.

 

Thanks

[AndyOrch]

http://www.legislation.gov.uk/ukpga/1974/39/part/VA