Cabot/Nolans Summary Cause Summons - re olde clydesdale loan - **Result Case Dismissed + COSTS**

[deimosboy]

Hi,

Great resource and wish I had the knowledge to help as so many of you do.

 

 

Perhaps they way I can help is tell my story and have the advice here that may help put someone else mind at rest.

 

I have received a summary cause summons from cabot today.

 

Relates to old clydesdale loan.

 

My business went under in 2009 and everything pretty much went to pot.

 

Struggled to pay my bills for a while then the defaults kicked in and had house repossessed after a a few painful years (another story sold cheap so owe the bank still)

 

I have not heard anything on this debt from CB for years or any DCA - Cabot that i can think.

I have not received any assignation letter from either.

The loan account number still appears in my online banking but for as long as i can remember the balance is 0 it has been like that for at least 2-3 years.

 

 

I thought it had been written off or wait a sec maybe it was assigned way back just not clear as to that but certainly not assigned this year.

 

I am a little confused if it is an enforceable loan why CB are not pursuing, me still bank with them.

If it was assigned way back why are they claiming just assigned in last 5 months?

 

The amount is £4500 so it is summary cause and not small claim.

 

There is no supporting documentation in the summons other than the details in the statement of claim paragraphed as follows-

 

1) Jurisdiction

 

2) The loan account details, that it was under CCA1974, was assigned earlier this year, last payment 2011

 

3) Outstanding balance £4500 not maintained the agreement

 

4) Called upon to make payment I have refused and action rendered necessary.

 

No detail here other than account number, does not note original amount or monthly amount or period of the loan.

 

So first instance will try and get it dismissed but they can lodge again at the correct court so ultimately will have to deal with this.

 

Two things summary cause scares me as unsure what the expense they are allowed to claim, small claim is restricted, so advice on this would be great.

 

Secondly how to proceed without damaging the time bar.

1) They claim 2011 last payment but I think would be 2010

2) Assignation - no letter

3) Is it enforceable how do i best get the details from cabot and cb.

4) Use incourt debt advisor from a debt charity if they talk on my behalf with DCA does this affect the tim bar.

 

The return date, when i have to respond to the court is 27 July and calls in court where it is decided if it will go to full proof hearing on 10 august. If it does go to proof it will be sometime in November I would imagine should I not get it thrown out for jurisdiction.

 

So should I CCA or SAR Cabot and Clydesdale

I don't think i should engage their solicitor at the moment as technically they do not need to give me anything until 14 days before the proof (i think that is right).

 

I have made contact with a local debt charity which has incourt service advice though i don't think they will appear. They will talk to your creditors though so will try and see them later in the week. If they get in touch, think i sign a mandate to allow them to, does this affect the time bar.

 

A few years ago this would a be a very dark place for me tonight, I tried to do something really really stupid that did not work and so I now live life to the full everyday. I really don't get affected or worry about this crap any more I just need to work out how to react to the various outcomes.

 

Thanks for reading and thanks in advance for any advice.

 

D

Edited June 17, 2015 by deimosboy

[fkofilee]

Are you in Scotland?

[SabreSheep]

HI Welcome to CAG

 

Im not familiar with "Summary Cause Summons"

 

Is this in Scotland?

 

Also as this appears to be a legal issue, I will relocate this thread to financial legal problems so you get more attention.

 

Im sure help will be forthcoming

 

Regards

 

SS

[deimosboy]

Yes I am in Scotland, it is in Sheriff Court and DCA have a Scottish Solicitor acting for them.

[SabreSheep]

Righto, have tweaked your title a little as well

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/showthread.php?428590-You-have-received-a-Claim-**ISSUED-IN-SCOTLAND**-What-you-need-to-do.

[dx100uk]

I would be sending cabot a CCA request

 

£1PO leave it blank

don't sign anything.

why don't you ring the original creditor

and ask last payment date

 

this might be very close to be extinguished under Scottish SB rules - 5yrs.

 

dx

[maroondevo52]

Reading this thread should help...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?212609-Summary-cause-Summons-Scotland.-MBNA-optima-legal&highlight=summary+cause+scotland

[deimosboy]

Thanks for the links.

Keep the information coming and on some of the specifics would be great.

 

I am understanding this correctly

 

CCA request to DCA (CABOT claim assigned to them) today in post - they have 12 working days to respond.

 

As the 12 days is within the period i need to send my response back to court I do nothing until this comes as my response to the summary cause summons depends on what they send.

No reply that would be my defence. If they supply post up here for advice on enforceable.

 

Check with original lender date of last payment? As in Scotland if it is 5 years then it is SB and that is my defence as it is assigned I am free to contact without affecting SB timescale.

 

Question - If the action has been started i.e. I have the summons the SB i think will be AUG so plus 40 days, if i defend it will be at least October before a hearing. As the SB falls after court papers filed but before the hearing does the SB apply?

 

Question - Should i not request anything of the DCA's solicitor, I don't think there is a need having sent a CCA? or will I send an IA to the court for the documentation with my documents for the return date.

 

May be worthwhile to point out that the papers have been filed in B]wrong jurisdiction[/b]. So what do I need to file at calling to have the case dismissed as court does not have jurisdiction. In returning my papers if i am to try to have the claim dismissed as to the jurisdiction do I need to state that i will defend and lodge a defence or would I take the defence with me at the calling date and should I not have the claim dismissed then lodge the defence?

 

Thanks again for all the help

 

 

Cabot Financial (UK) Ltd – Original loan with Clydesdale Bank

 

Date of issue –

Date of Issue 15/6

Return date 27/7 when I need to return the forms and say if defending

Calling date 10/8 when I need to appear in court would not go to a full hearing this date, a proof diet (hearing) date fixed probably out with 2 months so October

 

What is the claim for – the reason they have issued the claim?

 

1. On or around *2005 Clydesdalebank entered into a loan agreement (“the agreement”) within the meaning of section 189(1) of the consumer credit act 1974 (the “1974 Act”) with the defender in respect of a loan reference ***.

 

2.Clydesdale Bank granted the defender credit on this account subject to the defender maintaining an agreed repayment plan.

 

3. The defender defaulted in payment on the agreement.

 

4. On * Clydesdale Bank assigned the debt to Cabot Financial (UK) Ltd.

 

5. The last payment made on * The defender has not maintained the agreed repayments.

 

6.There remains a balance outstanding and resting owing to the pursuers by the defender as at * May 2015 of XXX which is the sum sued for

 

What is the value of the claim? £4500

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Loan

 

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

 

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. Assigned – claim it was this year but think it several years ago

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Not that I can recall

 

Did you receive a Default Notice from the original creditor? Yes – but not got a copy, default date recorded on my credit file

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Absolutely Not

 

Why did you cease payments? To check they claim 2011 but I think and credit file would suggest 2010

 

What was the date of your last payment? Aug 2010 – To be confirmed

 

Was there a dispute with the original creditor that remains unresolved? Unsure it dropped off my online banking several years ago, account still there with 0 balance. I thought it might have been written off with a business debt I had

 

 Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? NO

 

..

[deimosboy]

CCA Cabot and have the response attached below asking for 40 days.

I have SAR the original lender so will be 40 days till i get everything from them.

 

I have not contacted Cabot's solicitors the CCA shows they don't have anything right now and so the whole claim is speculative based on eventually finding the documentation.

 

As they have raised the claim now and should they be unable to get the documentation before the case calls would i ask for decree in absolvitor with expenses?

 

As I have stated above under the 1974 act and sheriff court rules the court is wrong as I am not domiciled in their jurisdiction which I would ask for the claim to be dismissed. However if they are under pressure and fail to come up with the paperwork is my best option to ask for decree, can I ask for decree.

 

PLEASE HELP.

Edited June 25, 2015 by deimosboy
better image attached

[fkofilee]

I cant read it, youll need to PDF it.

[dx100uk]

std reply from cabot to CCA request.

 

 

dx

[StressBall]

can I just chip on about the £1 PO, and leaving it blank

 

. I did the same with Nolans some months ago -

they waited for 2-3 weeks, then sent it back to me wit a polite letter saying it wasn't made out to anyone.

It was for £10 for goodness sake, would they even cash it?

 

I had to fill out in respect of their client, and resend it -

month or two later, heard nothing.

 

Mine is an ordinary cause (over £5K)

- I believe Summary Cause for Deimosboy is for debts up to £5K. SLightly different rules for each.

 

, just saying that you may not get your CCA request fulfilled within the 12+2 day deadline, if you don't fill out the PO

, but then that's not an issue - just be prepared for it being pinged back to you to start again.

 

This will be a good sign - I think it means they are stalling as they do NOT have the paperwork they need to proceed to court.

 

Sgianthebard has been studying court cases of this nature and has concluded that procedure is everything - not necessarily having the correct legal argument

 

. That means you really need to study the rules and get everything in on time.l

 

.. I'd also suggest looking for a pro bono lawyer that helps with housing/debt problems, as you may well qualify for legal aid for this, and that will be like wearing a suit of armour for you

- your lawyer will ensure everything is done to exact procedure and you will not be liable for huge legal fees -

although, depending on circumstances, you may need to pay a contribution.

 

It is likely, though, that this won't go to court, if they cannot issue you with the correct paperwork, but they will string it along.

 

This is where having a solicitor backed by legal aid is very useful, although the more experienced folk here will advocate doing it yourself

 

... But the main point is that these DCA etc are trying to steamroller it thru the court.

 

As long as you keep an eye on the ball, you won't allow this to happen, and you will win... Good luck!

[sgianthebard]

I'm tied up with stuff until Monday, but I'll have a detailed look thru your posts then and if I can give any helpful info gained from my own recent court cases, I'll pitch in

 

Just a quickie about decree of absolvitor:

 

Sherriff does not have it within her power at a summary cause to grant this decree unless the case has been fully heard by the court.

 

But Sheriff CAN dismiss it, for any procedural reason and the SB clock starts running again

 

. The pursuer can then issue a new summons to start the procedure again from scratch

- but this will likely take some time.

so...if you have a few reasons to have it dismissed,

use only ONE of them at a time

so that you can get the clock started.

 

As you are VERY close to SB in Scotland, it should only take one, or maybe 2 dismissals to get the debt SB and unenforceable.

I'll go into more detail on Monday

[dx100uk]

99/100 leave the po blank

 

its only nolans faffing the claimant s a round that's all

just like restons do.

 

the only reason why a blank £1PO will ever be returned is to try and unsettle the defendant

and get them worrying about time limits

[sgianthebard]

They WILL try to grind you down by dragging things out

: adjourn for 6 weeks to get some documentation sorted

 

, adjourn fvor 6 weeks to let you read thru the documentation they sent you,

 

adjourn for 6 weeks because of a case they have involving children that must take precedence over your case, etc etc

. (these are ALL tactics Shoosmiths used against me)

 

What they are really doing here is trying to get as many appearance dates as possible, in the hope that you will not turn up or be late for one of them and they will win the case by default.

But they are only kicking themselves in the head, because if they delay past August, and then you get a dismissal for wrong court, or something - the clock starts running and the debt is instantly SB

[deimosboy]

Hi,

Thanks for the replies. Depressingly looks like I am sunk.

 

So I have the original loan agreement from a SAR to original lender - Two Pages attached.

My bank statement shows a payment which puts me inside the SB period unfortunately, an automatic collection by the bank.

 

So look to have dismissed on jurisdiction and expect to receive an updated claim.

 

Assume Cabot will get the copy from CB and so will have to deal with this.

 

First thing is the paperwork enforceable and could i build a defence in court or am I looking at a time to pay oder?

 

Thanks again in advance for your help.

[dx100uk]

can you put the figures back please

only blank out pers details

[deimosboy]

Will that not help identify me if they are watching.

 

Who is paranoid? not me, ok just bit.

 

original loan was approx £16k, Interest approx £5.2k, monthly £290 approx.

 

Did not take any PPI with this loan.

 

Thanks

[dx100uk]

Bit late to worry about that now

 

You have a claim form and you need help

Just blot out names & ref numbers

 

Go look at other uploaded agreements

You will see we need figure etc

 

Upto you.

 

Dx

[dx100uk]

What do you mean by auto collection by the bank?

 

Was there no DD set up

 

DX

[deimosboy]

Result Case Dimissed with expenses

 

ended up at the 1st calling court date today.

 

The court did have jurisdiction to hear the matter

however the claim was filed in the wrong court in that there is a court closer to my home address.

 

Court had a couple of options

Transfer to correct court,

Dismiss.

 

Pursuer solicitor was not briefed and was simply looking to adjourn to get more paperwork.

 

Having SAR cabot and their response indicates they accept debt is unenforceable as they do not have any paperwork.

 

I argued that the court is about success and failure and that as the pursuer has failed to identify if they have a case in law by examining the paperwork prior to lodging with the court I should received a decree in absolvitor.long shot but you never know,

 

as the opposing solicitor picked her jaw up from the floor the Sheriff agreed with me that they should have prepared the case before filing and that whilst he could not award decree he would dismiss the action with an award of expenses

.

at 10% scale for expenses I will have a check north of £350 coming from Cabot

 

I expect they will refile in correct court when/ if they get their hands on the paperwork and so will need your combined wisdom once more.

 

Thanks for the posts and support.

 

Wish I knew enough to help others out so kudos to the boys and girls who take the time out to help people like me out.

Edited August 7, 2015 by deimosboy

[StressBall]

I'm lead to believe that Cabot are useless at getting their hands on paperwork.

 

I have an issue with them just now - case sisted..

 

. I am still waiting for a response to my request for the CCA, from about 3 months ago...

 

I'm gonna keep my fingers crossed for you and hope you never hear a thing again...

 

Question for the more learned folks here though,

 

does the statute barred clock 'restart' in a situation like this...??

[deimosboy]

Pursuer solicitor today was wanting to sist

 

. I produced Cabot letter where they admit they have no paperwork and argued that they should be in possession of the papers to assess if they do have a claim in law before filing a summons,

this is something If I was you would rely upon when the next calling comes.

 

The SB is stopped while it is in court business, as I understand it does not extend the period i.e. SB is three months away

 

court action raised then so long as court action is ongoing when the SB date is reached it is not relevant, however if case is dismissed the original SB date once again applies.

 

Yeah fingers crossed they chalk me up as one of those types and not the no show, go away types.

 

I would be happy to settle for a couple of hundred on top of what they owe me now just to have it all go away.

[StressBall]

cheers...

 

used to be they HAD to supply a copy of the CCA with the writ, when filing for an Ordinary Cause (my case is Ordinary Cause), but no longer need to - simply aver to it - opens it up for all these idiot bottom feeders...