Arrow Global/Shoosmith summary cause summons - Old Santander Credit Card dEbt - Edinburgh **Absolvitor with expenses**

[sgianthebard]

Hi Dx,

 

Yes, I sent the CCA from the template here.

 

 

They are waaaay beyond 12+2 days even now.

 

 

So what's my next move?

 

 

Turn up at the hearing on the 28th and ask for a dismissal as the pursuer has failed to supply me with the requested docs under the CCA regulations?

[dx100uk]

I believe its something along those lines yes

 

but I'm not legally mind

and even more so with regards Scotland

 

several here will help

 

so just hangfire

 

I'm sure IDA one of the Scottish clan will pop in.

 

dx

[sgianthebard]

Today did not go well for me at court.

 

 

Let me give a brief run-down of what has happened so far for clarity as I have posted some of the progress previously across a number of different posts.(the dates and times and figures are approximations as I don't have all the documents to hand and my memory is not photographic)

 

Early last year (approx April) I received a letter of assignment from Arrow Global Ltd

stating that they now owned a debt owed by me to Santander on a credit card in my name.

 

 

The card had been taken out in 2008 and the credit limit of £4,000 had been reached (and apparently gone over by about £300)

The last time a payment had been made to the account was in 2011.

 

 

As I knew nothing about this, I thought it was a speculative letter from a DCA and ignored it.

A few weeks later I received another one stating that the previous one was an error,

but the error was merely the date of assignment. Once again, I ignored it.

 

After this I started receiving letters from Arrow Global Ltd threatening court action etc if I did not pay the £4300. I ignored these.

Then I received a letter from their solicitors telling me to pay or face court action.

 

In September 2014, I sent a recorded letter asking for SAR. I then received a summons to court (Summary Cause)

 

I attended court in November with my defence being that I had asked for documents and had not received them.

Arrow asked for 6 weeks to get the documents together. This was granted by the court.

 

2 days before the 6 weeks were up, I received through the post a credit card agreement plus a statement of account.

The agreement had not been signed by anyone, but it did have my name and address and dates on it.

There was no letter of assignment, or any statements other than a sheet of paper (statement of account)

with figures on it saying that I owed £4300 at the time this company purchased the debt).

 

I attended court 2 days later and the pursuer's lawyer suggested that I was given time to look at the papers.

The court offered me 4 weeks, I asked for 6 and was granted this.

 

So today..... I attended court at 10am.

In one of the cases before me, Arrow dropped their case against a defendant.

(they have done this on at least one case at every court hearing I have attended so far).

 

 

When I was called forward, their lawyer told the court that I had asked for 6 weeks to look at the documents and they were now ready to proceed.

The sheriff looked at me and said "What's your defence?"

I told her that before I got to that, I'd like to ask the court to grant a decree of absolvitor as the pursuant had not followed Summary Cause Rules.

 

 

I gave the sheriff a copy of the Act of Seredunt amendments 2009, where it states that on the initial writ,

the claimant has to attach a copy of the original cc agreement.

They had failed to do this, and therefore had broken the Rules.

 

The Sheriff looked at the copy and the highlighted section, and said that she was going to overlook this

and allow the case to proceed (which is her right).

I said that I understood that she could overlook a breach of the rules if there had been a mistake or an oversight,

but it was my position that there had not been a mistake or an oversight

and the reason there was no cc agreement attached to the initial writ was because the claimant did not have one.

 

 

She asked their lawyer if they had one and he said they did and they had sent me a copy.

I then produced the unsigned copy of the agreement they sent me

and told the Sheriff that I believed this was not a proper agreement as it had not been signed by anyone

and that was why they broke the rules by not attaching it.

 

 

I said that had they attached this to the initial writ,

I would have asked for a dismissal straight away and that they were banking on me just not turning up and getting a decree by default.

 

Well, the sheriff looked at me sternly and said,

"Are you trying to tell me that they have just made this up?

That you owe them £4300 and you don't owe them anything??"

 

 

I told her that I believed they were a speculative company that relied on people not turning up at court.

She then tells me that credit card agreements can be made online and don't need to be signed.

 

 

I then asked her about the other documents I had asked for which I had not received

(everything in the SAR, and mentioned 4 items which I had not received.

I told her that I had asked for all of this in September and that they had still not complied.

 

 

She poo-pooed that argument with a wave of her hand and said:

"Are you telling me you don't have credit card with this number?"

I said: "That is what I am telling you."

 

 

She then a asked if I had ever had a credit card with this number. I replied "No."

 

She then said "Well, all I can do is set a date for proof and we'll see who has what."

 

So, I'm back to court in a few weeks,

but it looks like she is going to accept that copy of the cc agreement in as their evidence that I owe this money,

and I think I have no other defence.

 

 

I am up sht creek without a paddle.

 

Just to add.

 

 

..I am disappointed to see that it appears that the burden of proof is on the defendant to prove he does NOT owe the sum claimed for.

 

 

I always thought that the burden of proof lay with the claimant

[dx100uk]

judge/sheriff lottery.

 

well I wonder if the ppi/charges can now be bought into play have you don't the spreadsheets.

 

 

dx

[sgianthebard]

I think that if the judgement does go against me, I'll then look at a PPI claim. (and charges etc).

 

 

With an amount of over £4,000, it's possible that at least half of that is PPI/charges.

 

 

I'm pretty sure that I can't add that to my defence now as it would change the defence completely to one of admitting the debt but disputing the amount.

 

One other thing I'm not yet sure about as I haven't yet read up on is:

 

 

What if the judgement for the full amount is awarded to the claimant.

 

 

What can they actually do to recover it?

 

 

Do they have to employ bailiffs to come and seize goods from my home?

 

 

Can they freeze my bank accounts and take money

- not that I have any money other than my monthly wage that goes in to pay bills?

 

 

Can they garnish my wage?

 

 

I've had a look at the cc agreement they sent to me to see if it has any note of PPI on it.

 

 

..it doesn't have much on there to be honest and certainly no note of any PPI.

 

 

It looks more to me like a terms and conditions thing than a proper agreement...

 

I absolutely got the sense that even although my arguments were sound and that I had the sections of a particular ACT of Sederunt to support me in my argument,

the sheriff poo-pooed me because she wanted to make a point that no common man without an education or qualification in law

could come to court and win an argument over an experienced lawyer,

and that she wasn't going to have some Joe Bloggs come into her courtroom and tell HER the law!

 

Another point

I'm sure she was making was that if a common man wanted to have his case properly heard in court,

he had better go and pay one of her colleagues to speak in court.

 

 

Protecting their profession so that they can continue to charge huge fees to defend cases that we, as laypeople are perfectly capable of defending.

 

If I had to do it all over, I would act the poor wee uneducated working man who was in awe at the legal system and the courts

and I would doff my cap reverentially at the sheriff and the big lawyers in their black gowns.

 

 

I bet the outcome would have been different if I hadn't quoted the legal terms and definitions

and pointed out exactly what rules the claimant's lawyers had broken...

[pancake roll]

Hi,

When is your evidentiary (proof) Hearing?

 

Do you have any docoments from the solicitors?

 

The solicitors and yourselves have to lodge documents 14 DAYS BEFORE THE HEARING.

 

 

Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 Chapter 29.

 

Lodging productions

 

29.11. (1) Where a proof has been allowed, all productions which are intended to be used at the proof shall be lodged in process not later than 14 days before the diet of proof.

(2) A production which is not lodged in accordance with paragraph (1) shall not be used or put in evidence at a proof unless—

 

(a) by consent of parties; or

(b) with leave of the sheriff on cause shown and on such conditions, if any, as to expenses or otherwise as the sheriff thinks fit.

 

I'm sorry to hear that the Sheriff was unfair to you , i had a good sheriff with all my court hearings.

I could help you with this.

I had to go through the proof hearing with MBNA,

But MBNA withdraw at the hearing,

along with all the others that tried to sue me in court.

 

 

Putting copies of the production to lodge in court is no that difficult ,

if you want help, give me a shout.

 

 

The Sheriff is testing you and to see if you still denied the debt.

 

 

Because you denied the debt,

the solicitors is now in sh..t street.

 

 

On the day of the hearing, they have to put on the table what evidents/documents that they going to reley on.

They must give you a copy to you 14 days before the hearing, you have a good idea if you going to suceed.

You also have to put what you have as well.

I can advise you how to put the list together.

The other side cannot add any documents or admend after the 14 days.

 

Pancake.

 

 

I have paste my notes that i have in my file from my perious hearing. As i said in my threads, i have to do a lot of reading. I have put in bold.

 

 

Preparation for proofs

Witnesses

 

Once a proof has been fixed by the Court the parties are entitled to cite witnesses. Witnesses may be cited either by recorded delivery or by Sheriff Officer. The period of notice is a minimum of seven days. The form of witness citation is form G13. Witnesses who fail to attend are subject to a fine of £250.

 

There is a considerable practical limitation on the power to cite witnesses in the Sheriff Court. It is only possible to cite witnesses who are located in Scotland. Witnesses who are located in Scotland who refuse to attend may become subject to a procedure known as second diligence which involves them being arrested by Sheriff Officers (OCR 29.9).

 

Within 14 days (28 days for actions raised after 2 October 2000) after the court order allowing a proof or proof before answer the parties are required to intimate to each other a list of the witnesses upon whose evidence they intend to rely (this would extend to witnesses giving evidence by Affidavit). The list of witnesses must provide the name, occupation and address of each intended witness. This is another requirement which is more honoured in the breach than in the observance, however, it is potentially of considerable importance as a party who tries to call a witness who is not on his list may face an objection from the other party and will only be allowed to lead the witness with leave of the Sheriff (OCR 9.14).

Documentary evidence

 

A similar rule to that relating to the disclosure of the identity of witnesses also relates to documentary evidence. Within 14 days after the court order allowing the proof or proof before answer each party is required to intimate to the other a list of the documents which are or have been in his possession or control which he intends to use or put in evidence at the proof including the whereabouts of those documents. Again this rule is virtually ignored, although the failure to comply might lead to an objection whereupon the evidence will only be allowed subject to the discretion of the Sheriff. It is thought that the rule may only be significant in the situation where the other party can genuinely show that he has been taken by surprise (OCR 9.13).

 

It will often be the case that any proof will not occur for perhaps several months after the court has allowed a proof to take place. Paradoxically the parties are only actually obliged to lodge their productions in Court a clear 14 days before the date of the hearing (OCR 29.1.1).

Copies

 

In the course of a proof objection may be taken to the use of copy documents. It is therefore desirable as far as possible to lodge the principals of any document. Where copies are used these should be appropriately certified in terms of the Civil Evidence (Scotland) Act 1988 as true copies. It is often inconvenient to produce originals. Often originals will have been destroyed and only microfilmed copies will exist. If there is to be an objection to the use of copies it is better not to wait to discover this until an objection is taken to a line of evidence in the course of the proof. One way of achieving this is by way of Notice to Admit as explained in section 2:7.6.5.

Copy productions

 

As well as lodging the principal copies of productions or alternatively certified copies OCR 29.12 requires the party lodging productions to lodge an extra set for the use of the Sheriff. This is to allow the Sheriff to have a set of copies to look at while the witness is speaking to the principal copies. It is normal to provide a set of copies for opponents.

Notice to admit

 

Once a proof has been allowed in terms of OCR 29.1.4 a party may call on his opponent to admit facts relating to an issue focused in the pleadings. Similarly he may call on his opponent to admit that a document lodged in process is an original and properly authenticated document or a true copy of an original and properly authenticated document. If the opponent does not issue a notice of non-admission within certain time limits then he may be deemed to have admitted the facts or documents referred to in the notice to admit. Notices to admit are particularly useful in relation to copy documents. If a notice to admit is issued as soon as a proof is allowed then it will become clear whether or not there is an issue to be taken in relation to the use of copy documents

[sgianthebard]

Hi,

When is your evidentiary (proof) Hearing? Wed 1st April

 

Do you have any docoments from the solicitors? Only the cc agreement I've already mentioned plus a"statement of account" already mentioned

 

The solicitors and yourselves have to lodge documents 14 DAYS BEFORE THE HEARING.

 

 

Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 Chapter 29.

 

Lodging productions

 

29.11. (1) Where a proof has been allowed, all productions which are intended to be used at the proof shall be lodged in process not later than 14 days before the diet of proof.

(2) A production which is not lodged in accordance with paragraph (1) shall not be used or put in evidence at a proof unless—

 

(a) by consent of parties; or

(b) with leave of the sheriff on cause shown and on such conditions, if any, as to expenses or otherwise as the sheriff thinks fit.

 

I'm sorry to hear that the Sheriff was unfair to you , i had a good sheriff with all my court hearings.

I could help you with this. Thanks I appreciate the offer

I had to go through the proof hearing with MBNA,

But MBNA withdraw at the hearing,

along with all the others that tried to sue me in court.

 

 

Putting copies of the production to lodge in court is no that difficult ,

if you want help, give me a shout. I don't think I have any documents to submit as my position is that I have never had this credit card and I therefore don't have any documents other than what the claimant has sent me

 

 

The Sheriff is testing you and to see if you still denied the debt.

 

 

Because you denied the debt,

the solicitors is now in sh..t street. How so? If the Sheriff has accepted the non-signed agreement as evidence that I owe the money, surely they already have won their case?

 

On the day of the hearing, they have to put on the table what evidents/documents that they going to reley on.

They must give you a copy to you 14 days before the hearing, you have a good idea if you going to suceed.

You also have to put what you have as well.

I can advise you how to put the list together.

The other side cannot add any documents or admend after the 14 days.

 

Pancake.

 

 

Please see questions and answers in red

[pancake roll]

The sheriff can’t accept any evidence at this stage of the hearing or make judgment because you are challenging and disputing the claim,

that is why you have been sent a further hearing and the sheriff might announce his decision at that time.

 

 

The other side will have to come up with a credit agreement documents 14 days before the hearing.

 

 

With me, MBNA put a copy of credit agreement which you could not read and did not have my name or any signature.

Just a copy of the blank agreement.

 

 

The advantage of been a defender, you will see what evident (productions) that they going to use in court,

then you have time to prepare what you are going to say in court.

 

 

Have you put in the incidental application requesting documents?

 

 

If you have not as yet, put in one now,

 

 

you will get a hearing date before the proof hearing, which you and them have to turn up for the application.

 

I have sent you a private message, .

Edited February 25, 2015 by citizenB
edited for privacy

[sgianthebard]

Just an update on my case:

 

I attended court this morning for a proof hearing. The other side mumbled something to the sheriff and the sheriff told me that the case was being put back for 3 months. She gave me a jargoned reason but I didn't understand what she meant and when I asked, she just repeated herself.

 

I think I'll go back to the court building and ask if I can get a transcript of the hearing so I know why this proof hearing was postponed.

[sgianthebard]

Yesterday I received the productions that Shoosmiths have lodged for the proof hearing. They consist of an unsigned credit card agreement with the terms and conditions attached, and one sheet of paper with dates that the credit card was taken out, my name and address, and a figure that is owed on the account. (I believe this is what they claim is the statement of account.)

 

Proof hearing is in approx 3 weeks time.

[sgianthebard]

Today I attended at court for the Proof Hearing. Before I describe what happened, here's what happened yesterday:

 

I received a mobile call from Shoosmiths (acting for Arrow Global).

The girl tells me that she has a document on her desk that I asked previously to see, and if I give her my email addy, she will send it to me.

 

 

I asked her was this a document she intended to produce in court. She says yes.

 

 

I tell her I am not interested in seeing it and if she tries to introduce it as evidence,

I will object as I have not had it 14 days befor ethe date of the proof and it has not been lodged as a production.

She then asks me if I would like to think about it and call her later to discuss a settlement.

I replied that I'd see her in court.

 

today at court...Pursuer fails to turn up.

 

 

I make a motion to dismiss and grant Decree Absolvitor.

 

 

The sheriff says she can't grant a decree of absolvitor, because the case has not been heard

but has come up against a brick wall procedurally.

 

 

I make a motion to dismiss with expenses.

Sherriff grants this, and makes me aware that if the pursuer wishes to, they can make a claim again,

but will have to start from scratch.

I thank the court and walk out

 

Case Dismissed.

[pancake roll]

Well done, glad to hear its over. Its hard and stressful to do it yourselves.

I went through 4 different credit cards company. I still get letters from different debt companies from uk chasing me for the debt, even thogh its been through courts.

[dx100uk]

great result well done

 

 

called their bluff

 

 

excellent!!

 

 

dx

[sgianthebard]

I fully expect to get another letter from Arrow, telling me to pay this debt or they may take court action against me. I'll be more than happy to go through this procedure again and get more expenses from them the next time

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/showthread.php?447573-Summary-Cause-Summons-from-Cabot-Scottish-Courts&p=4754633#post4754633

 

 

this guy could do with assistance

 

 

 

 

bit busy today

 

 

dx