Arrows/? Ordinary Cause - old MBNA card DEbt ***GRANTED DECREE OF ABSOLVITOR***

[StressBall]

IDA et al

 

- here are my answers to your questions,

plus the scanned writ, in it's entirety,

and a copy of a follow up letter received from Y+K.

 

What is interesting, is that they have NOT responded to my CCA request,

but you will see on p8 of the writ that they state that a copy of the agreement

and the default notice will be produced in the event of this action being defended.

 

WHY HAVE THEY NOT SENT ME A RESPONSE TO MY CCA IF THEY HAVE THE CCA?

 

What type of action? (Small/Summary/Ordinary)

I have NO IDEA? Can you tell from the writ?

 

Is the claim for a current or credit/loan account or mobile phone account?

CREDIT CARD - INITIAL LENDER MBNA

 

When did you enter into the original agreement before or after 2007?

NOVEMBER 2001

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim.

ARROW GLOBAL PURCHASED THE DEBT - CLAIM FROM THEM VIA Y+K

 

Were you aware the account had been assigned – did you receive a Notice of Assignment?

CAN'T SAY FOR CERTAIN IF I RECEIVED AN OFFICIAL NOTICE OF ASSIGNMENT OR NOT.

THE DEBT BOUNCED BACK AND FORWARD BETWEEN A FEW DCA WITH THE USUAL THREATENING LETTERS, BUT NOTHING CAME OF IT.

CHANGED FONE NUMBER AND IGNORED THE THREATENING LETTERS.

I JUST REMEMBER ARROW WRITING SAYING THEY OWN THE DEBT NOW, AND PAY UP.

I DO HAVE A LETTER FROM THEM SAYING MANAGEMENT OF ACCOUNT WAS TRANSFERRING TO RESTONS SOLICITORS (16.05.14)

HEARD NOTHING FROM THESE GUYS. I THINK I RECEIVED A LETTER AT THE BACK OF THIS ONE SAYING IT HAD TRANSFERRED TO Y+K!!

BUT CANNOT FIND THIS AT THE MOMENT.

 

Did you receive a Default Notice from the original creditor?

IT WOULD BE 4 YEARS AGO - THEY CLAIM ON WRIT 30 NOV 2010 - cannot remember ifI actually received this.

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

NOPE - HAD FROM OTHER LENDERS, NOT THAT I CAN EVER REMEMBER FORM MBNA.

 

Why did you cease payments:-

I am self employed (sole trader).

6-7 years ago I suffered catastrophic bad debts,

as a result of a couple of limited company clients going out of business,

leaving me with no chance of recovering the debts.

I used credit cards to borrow more and always managed to pay, at least, the minimum monthly payment every month.

I'd never missed any payments, when the likes of MBNA, Virgin (MBNA), Citi etc,

all raised their interest rates from around 16% to up to as much as 40%

- remember I'd not missed any payments up to this point.

As BOE interest rates were at an all time low, this really annoyed me, and I

took up the offer of a company called CREDIT ISSUES,

who promised to help you write off your pre 2007 credit card debt,

due to flawed CCA etc.

SO, around Summer/Autumn 2010,

I stopped paying a number of cards and I was, eventually, defaulted on them.

Every card I had was deemed unenforceable

- due to a number of different reasons.

This MBNA account, with Arrow Global, was described, as follows, by Credit Issues

(in March 2010 - although I did not stop payments until later in the year).

I can confirm that a full and final audit was undertaken on the agreement the lender provided which is a True Copy.

However, we established that the rate of interest was incorrectly stated

and therefore it was outside of the tolerance level set under the Consumer Credit Act.

This is a breach of schedule 6.

By failing the contain all of the Prescribed Terms the agreement*is found to be*irredeemably unenforceable.

 

NOTE: IF ARROW GLOBAL/Y+K HAVE A TRUE COPY,

WHY HAVE THEY NOT PROVIDED ME WITH THIS UNDER MY CCA REQUEST?

ARE THEY NOT LEGALLY OBLIGED TO DO SO?

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan?

NOT WITH THE LENDER.

IN THE VERY EARLY DAYS, I DID ENTER INTO A 3RD PARTY DEBT MANAGEMENT PLAN

AND ALL THE CALLS AND LETTERS STOPPED

- ONLY TO START UP AGAIN.

I'D MADE THE FIRST 2 PAYMENTS TO THE DMP,

BUT THE COMPANY HAD GONE BELLY UP,

AND HADN'T MADE ANY PAYMENTS, HOWEVER SMALL, TO THE CARD COMPANIES!

 

Also did they attach a copy of the credit agreement with the court papers?

NOPE - AND NOR HAVE THEY DIRECTLY RESPONDED TO MY CCA REQUEST, WHICH WAS SENT MY SPECIAL DELIVERY AND SIGNED FOR ON 30.09.14

[oleg]

Hi

 

Hope you're well

 

Couple of remarks while you wait for Scottish expertise . . .

 

CCA. No mention = no big deal. MBNA still searching so Y K conveniently don't mention. You don't actually *want* them to find it, do you? Yes they are legally obliged to supply it, but no sanction against them if they can't.

 

If they have any sense, they will not proceed unless / until they can produce a copy of the original,

otherwise they will not succeed in anything except loss of the court fee.

 

You say no official notice of assignment received. But you also mention that you had a letter saying A G now owned the debt. That is the NoA. No "official" format.

 

Oh and btw, I hadn't realised until now that this had already passed through Reston's grubby paws. As I remarked earlier, if an A G account at the gates of S B passes through one solicitor unactioned, it will almost definitely be actioned at a second one. Last chance saloon and all that. There would have been no doubt in my mind that the court threats were real, had I been aware that you were on your second solicitor.

[StressBall]

Hi Oleg,

 

cheers for some input.

 

MBNA must have been able to find the CCA in 2010, as it was deemed as a 'true copy' by Credit Issues. Of course, that's not to say they can find it now?

 

Also, the Restons thing: From memory, and I will have a wee hunt for the letters and put them in time order, I think I received the letter about Restons one day, and then the self-same letter the next day saying it was Y+K. Perhaps they realised it was Scottish Law, and then changed to Y+K? I've certainly had NO correspondence whatsoever from Restons.

[oleg]

Stress don't give yourself a hernia lifting boxes in search of the Restons thing. It is immaterial to the case now.

 

I think you're right about it being a blunder. A G frequently make admin errors cos they've overstretched themselves with their outsourcing. I was really surprised when you mentioned Restons. I couldn't recall their using a solicitor in England for a Scottish case before.

 

And yes, finding a CCA one day doesn't mean they can still find it the next. No more than your finding again the scissors you had in your paws a minute ago.

 

More importantly . .

 

Why on earth are you still placing credence in Credit Tissues?

They just fleeced punters such as you dry. I wouldn't take their word for it that the CCA was a true copy.

 

I take it that you did see it yourself? Have you had someone both knowledgeable and reliable check it out?

[StressBall]

Oleg,

 

didn't see the CCA for this card, or any other - but pretty much every other card was no true copy. SO I took the punt of just not paying them - well, the ones that were barstewards that increased interest to mental rates. I made 2 payments to Credit Issues, and need to find a record of the second one, and do a section 75 claim - as the payments were made on a current credit card I still use - can I do a section 75 claim this far down the line?

 

By the way, I used them as a good friend paid good money to be a regional director, and trusted her. Er, never again. She lost a small fortune. And I ended up like this ;-)

[oleg]

That's what friends are for. I know. I've been there.

 

Section 75 on what grounds exactly? And so late in the day, I doubt it. Try if you have the time but your absolute priority right now is Y K.

 

Even if a copy of the original agreement does come to light, it doesn't necessarily mean that it is enforceable. Hence the need for it to be checked out. It could be critical to your defence, should Y K proceed to court.

[StressBall]

SO, as the CCA is crucial to my defence, I'm assuming it cannot go to court until I've been supplied this? I mean, they can't just whip it out in court, without me having been supplied this prior to any court date - seeing as I asked so nicely and sent them the princely sum of £1 for their trouble?

[dx100uk]

well its critical to them

no cca no case to answer m'lud..

 

 

dx

[oleg]

Yes I should have said critical to them not to you. You would most likely be putting them to strict proof. Not just of a CCA but of a compliant one.

 

No they can't just produce it in court. Well they can but it would be inadmissible.

 

There's a certain friend of yours called Disclosure.

 

[Mind you, you probably call it something else in Scotland. Disclosement or Unclosure or something Latin.]

[StressBall]

Any more info with this guys?

 

Ida?? What action do I take regarding these papers?

 

Still no CCA from Y+K - yet they claim it will be produced in court - so, if that's inadmissible - without them sending it to me first - what do I do here? Pay the £80 odd court fee and submit the form saying I intend to defend?

 

I'm running out of time here, I need a wee bit of final advice methinks, just to be sure??

 

Cheers in advance.

[AndyOrch]

Why do you have to pay £80 court fee if defending all?

 

Andy

[PRBrown]

Why do you have to pay £80 court fee if defending all?

 

Unfortunately, when it's an Ordinary Cause you need to pay a fee to inform the court you will be defending.

 

If it is Ordinary Cause (depends on amount) then they won't just be able to produce documents in court.

 

What will follow is a fairly long process of back-and-forward of condescendence's,

answers to condescendence,

making sure copies of documents that will be relied upon are given to each side,

final docoment lists,

probably a couple of stays,

possible proof, and then debate.

 

They won't be able to just show up in court with the paperwork,

and you will be given an opportunity to study it and respond to it before you end up on court.

 

It could draw out for several months before you need to actually appear.

 

The Scottish process is complicated, it is drawn out, but ultimately it is probably fairer in that all cards are on the table before you get to go to the court.

[IdaInFife]

is it small claims, summary or ordinary cause?

 

small up to £3000

summary £3000 - £5000

ordinary over £5000

 

you will need to apply for IA asking for documentation

[StressBall]

Why do you have to pay £80 court fee if defending all?

 

Andy

 

 

Andy, I'm sure I read on the writ that you have to lodge the paper at the court and pay an £87 fee. But I'm clueless as to what to do, to be honest. Never been in this position before...

[StressBall]

Cheers PRBrown...

[StressBall]

Ida, it's Ordinary Cause. I answered all your questions previously ^ up there somewhere! And there's a copy of the scanned writ too...

 

Sorry, I'm clueless here. Do I need to get a lawyer involved? And what does 'apply to IA asking for documentation' mean...?

[IdaInFife]

For ordinary cause action you will need to do your homework as it is not as straight forward like a small claims.

 

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

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?165649-Citation-Received-Clydesdale-bank-Credit-Card&highlight=ordinary+cause

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?203294-Halifax-formerly-Bank-One&highlight=ordinary+cause

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?358829-Intial-Writ-In-the-face-of-a-S78-Dispute.&highlight=ordinary+cause

 

you need to decide if you feel you have the time and ways to manages this

[StressBall]

Ida, a year from statute barred -

am I hell going to capitulate to these greedy bastards.

If you guys will all help me as much as possible, I'll be fighting this.

 

But, I do need to ask a question (again) that nobody has yet answered.

It's now 36 days since the CCA request was signed for at Y+K.

 

 

They claim on the court writ that they will produce this in court, but have not, as yet, sent me a copy of this.

 

 

I'm happy to complete the form 07 - again with a lot of hand holding from you guys

- and lodge this with the court,

but I cannot defend this action without sight of this, surely?

 

I know this probably means there isn't a case to answer, if they have no CCA,

but do I still need to go thru the motions of defending and submitting the form 07?

 

Can someone PLEASE give me a brief timeline of how this all goes from here on in...?

[PRBrown]

They are playing on your naivity and hoping that you don't act within the timeframes and that they get judgement by default.

It's probably not helped by using English terms like "Strict Proof" (that doesn't exist in a Sheriff Court and means nothing).

 

You can't use their inaction as a reason for not responding.

If you don't have paperwork then say so,

if they haven't fullfilled their S78 obligations then say so in your initial defence.

 

They know they can't just magically produce an agreement in court as a fait accompli so don't worry about that

- it would have to be listed in their inventory of productions and you would need to have sight of it before court

or else they won't be able to rely upon it.

 

You''ve probably sent your CCA request to the wrong people.

Y+K are solicitors, not the creditor.

 

Maybe they should have passed it on and I'm sure a Sheriff would take a dim view if they haven't,

but best not to assume anything and get it off to the creditor.

 

The Scottish rules are complicated.

 

Have a look here - https://www.scotcourts.gov.uk/rules-and-practice/rules-of-court/sheriff-court---civil-procedure-rules/ordinary-cause-rules

- paritcularly the 2 parts of Section 9 as these are the rules you'll be playing by.

You can do it yourself, but no-one can really guide you unless you have a basic grasp of the concepts.

 

You'll need to get your head around "Condescendence and Answers" (your arguments),

"Pleas in Law" (what you want the court do based on your arguements or law),

Inventory of Production (the list of documents each side is relying upon),

Rule 22 Notes (asking the Court to ignore parts of the defence),

Options Hearings, Proof, and Debate.

 

It's not impossible, but you have to put the effort in yourself and it will be considerable.

 

The good thing is, if they haven't provided you with a reply to your s78 request then it is an absolute (but possibly temporary) defence.

 

The agreement being non-compliant is an absolute defence too

but you have to have solid arguements why it is so and be able to defend that position.

 

Don't think for one minute that these issues will stop them.

There will be a considerable sunk cost for them already now that a solicitor is involved.

It isn't going to cost them that much more to take it further to see how well you can defend your position in the initial stages.

They will hoping your lack of knowledge overwhelms you and you give up...don't let them do that to you.

 

I can give you a copy of some skeleton arguements for the first stage

but you must not use them without understanding what is being said,

why it is being said, and what parts might be relevant for YOU.

 

Just copying it without an attempt at understanding it is going to drop you in hot water.

Sometimes it seems the same Pleas are being used twice,

but they are slightly different takes on a defence in law.

 

I'm sure I've posted this before, but here you are:

 

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 DATE 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)(a) and S78 of the Consumer Credit Act 1974 and Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), and being accordingly disentitled to enforce any agreement the action should be dismissed.
   

5. The Pursuers being disentitled by s.127(3) of the Consumer Credit Act 1974 from enforcing any agreement by the court under s.65(1) in cases where the agreement does not satisfy S61(1)(a), 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 assoilziedfrom 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

[StressBall]

Crikey PR! Cheers Guvnor...

 

in March 2010 this card (original agreement was taken out in 2001, I think) was deemed thus:

 

I can confirm that a full and final audit was undertaken on the agreement the lender provided which is a True Copy.

However, we established that the rate of interest was incorrectly stated

and therefore it was outside of the tolerance level set under the Consumer Credit Act.

This is a breach of schedule 6.

By failing the contain all of the Prescribed Terms the agreement is found to be irredeemably unenforceable.

 

EVERYONE tells me to CCA the new owner of the debt

- or the solicitor acting for them

- and not the original creditor.

I guess this may be because a degree of Chinese Whispers goes some way to the original CCA not being requested or found.

 

Whilst I agree with your argument that it's a good idea for me to CCA the OC,

I have to strongly assume that Y+K have passed this along as, without it, they have no case.

 

And in any case, just 'cos it was found in 2010, does not mean it will be found now.

And if it is, then I'll be hoping the above appraisal of the card is correct and a breach of section 6...

[PRBrown]

Yep, CCA the current owner of the debt - the one who instructed the solicitor - not the OC.

If I suggested that, I'm sorry, it wasn't intentional and I did mean the current debt owner.

The solicitor should pass it on, but as I said don't rely upon it.

 

If you're relying upon the rate of interest difference, you'll need to be extremely robust in your arguments as it could be tough.

 

Don't forget in your initial response to do things like double-line spacing, your full details etc.

 

 

There's lots of things on the internet regarding the correct format for your reply to the initial Writ in Scotland so make sure you following them.

[StressBall]

geezo - does the actual spacing really matter that much - ooft...

[PRBrown]

geezo - does the actual spacing really matter that much - ooft...

Absolutely.

 

There's not much point in putting in the effort if you can't be botthered formatting it in the way the court wants.

It's all about details, not just the format of your reply, but the efficacy of your arguments,

the subtlety and strength of your defence and counter thrust, and the way you conduct yourself.

 

If you can't be bothered with nit-picking detail and crossing all the t's and dotting all the i's then you'll get trampled.

 

This isn't a time for asserting your individuality and cocking-your-snoop at authority.

 

This it the time to buckle down, playing by their rules, and making sure you win.

 

Minor formatting mistakes might be forgiven, but don't underestimate the importance of doing it right.

 

You're out to impress the Sheriff, not annoy him.

[IdaInFife]

I Think PR has covered all your bases and as PR says we can only guide you, it is up to you to do the leg work and read and read and read.

 

Make sure you understand every point.

 

As long as you are prepared to put the time, effort and details into it then by all means you will get all the help you can.

[StressBall]

Guys and Gals - good morning... wee bit input please?

 

I've received the SAR from MBNA - has a photocopy of an agreement, but just the signature part from an application form - 27.10.2001

 

There's no reference to interest rates etc on it - I assume this would be on another page? But would they keep this? Shouldn't they have sent this too, if it's important to the CCA, as a whole?

 

Also, looking thru the transactions, from May 2008 the interest charges stopped and these were replaced by TWO 'finance charges' - looking like it was changed from a credit card to a loan?? The result of this, by the way, from the last interest payment, was an increase of over 25%

 

What are your thoughts on this??? I'm going to look thru the call log stuff to see if there's a mention of this at all, but I certainly have no memory of this.

 

I am going to have a lawyer help me with the lodging of the form 07 to defend the action. This is a crazy busy time for me, being self employed, and I have some health issues that I'm struggling with - waiting on results of MRI on brain - unable to think straight and focus - not conducive to dealing with this stuff!

 

Anyway, some input on this change in the interest to a charge would be useful - is it significant?

 

And, what about the CCA? Still not been supplied by Y+K - PR says to CCA Arrow? The Ordinary Cause defence needs to be at the court for Friday - so should I do this before or after this date?

 

My gut feeling, going on all past efforts by DCA/solicitors, is that this is till a scare tactic, to force you to make contact and start paying. I don't think they count on many folk defending?? But I could be wrong. As they've definitely done it in the past.

 

FURTHER THOUGHTS GUYS?? STILL DEFEND??