Cabot / Optima Ordinary Cause Summons - £25k BoS loan

[McGoo72]

Hi all.

 

I got into more than £50k of debt a few years ago and ended up in dire financial trouble.

I read up on these debts using a site called ****** and used their three letters method to deal with the banks, credit card companies and DCAs.

 

A couple of weeks ago I received a writ from my local Sheriff Court as seen in the photos:

 

I'll be honest, I'm terrified now.

 

I get limited legal cover through my work

i spoke with a solicitor.

 

 

He was decidedly unimpressed with the letters and advised me to do a trust deed.

He says Cabot are a big company and will definitely have the assignment, they wouldn't have spent money on the legal costs to begin with if they didn't have them.

 

 

He did help me with a skeletal defence for court:

 

I have set a meeting for tomorrow to start to arrange the trust deed.

My honest feeling is that Cabot have nothing, but I would be risking my house if i was wrong.

And I have no real basis to believe they don't have what they need.

 

I have never received any letters from Cabot before the writ.

No notice of assignment or even a demand for payment.

 

 

I have had other DCA's for this account but they stopped responding after the three letters.

I immediately sent Cabot the three letters by recorded delivery but they have never responded.

 

The last day for making adjustments to the writ or defences is 11th November.

i have a bit of breathing space but I'm really worried.

 

Any help will be much appreciated.

 

Ps the letters are like this:

[honeybee13]

Hello and welcome to CAG.

 

Please don't post clock in order to increase your post count. There is another way to upload documents.

 

HB

[McGoo72]

Oops sorry honeybee:oops:

[honeybee13]

I'll let you off this time. Seriously though, if you want to upload anything else, just click on the word upload in my posts and there's a link to follow.

 

I'll flag your thread for the site team to see if anyone can help, given this is urgent.

[citizenB]

Oh dear, it looks like you got caught up with the "three letter" crowd. Sadly, that will only bring more grief down upon you.

 

I will alert those who will be able to help you - it might be later on in the day when they have finished their day jobs

[McGoo72]

Ok folks thanks. I have to work today so won't be back on until 10pm

[honeybee13]

I'll alert the night shift. It would be worth trying to keep an eye on your thread during the day if you can, as you don't have much time to prepare. Especially if the guys have other questions to ask you.

 

HB

[dx100uk]

I'd cancel that meeting.

 

cabot rarely have any enforceable paperwork hence the vague claim wording.

 

why would HBOS sell a £24k loan debt ...urm

 

have you sent form 07 back and stated defend all and wanting the CCA copies and all other paperwork they intend to rely upon?

 

something smells here bigtime

 

tell about the loan

 

was it merged debt, what was that debt? and was it at the insistence of HBOS

 

you've a good while to sort this

 

what date do you have to return your paperwork [07 ] by

 

dx

[honeybee13]

Thank you for answering the SOS, dx.

 

HB

[deimosboy]

I just had a summary cause action for cabot dismissed and received a cheque for the expenses.

 

Cabot did not have any paperwork, after a a CCA request.

No assignation papers,

No letter informing me of assignment nothing.

 

So before you go down the trust deed

I would see what they have with the CCA

do not engage their solicitors you are not obliged to do so.

 

The first hearing will be where the sheriff decides if it is going any further

 

then it will be at least 2 months before you get the next hearing called the "proof diet".

 

Even if the proof diet goes off and the case is heard and they won you would have time to set up your trust deed after that.

 

Optima will have a local agent appear at the first hearing with little information and instruction. This is where you have an advantage.

 

CCA them today, you will get an acknowledgement.

If they have anything they will send it.

The letter if they don't gives you something to use in court.

 

Hopefully before the 11th you get the second letter stating they don't have the paperwork and are still trying to get from the original lender.

 

If I was you I would go to the calling hearing after doing a wee bit of reading with one or both (if the second makes it) of these reply letters from cabot.

 

At this hearing their agent will state their claim and then you will be asked your response.

 

State your intention would be to defend the claim as you have not received anything prior to receiving the summons,

did not and do not have any dealings with cabot,

they could be anyone you may have to acknowledge there was the original debt but you believe that had been resolved although not cleared. "

 

However you would ask the court to dismiss this action as without the paperwork cabot should not have brought the case to court without knowing they have a claim or not in law."

 

Use the first letter which will state the debt is unenforceable until they comply

 

the second letter if you have it in time,

two copies one for the court and one for their agent.

 

Court principle is based on success and failure,

cabot have taken the risk of bringing the action which is unenforceable in law without having the paperwork (which in the court procedure they should submit at the outset).

 

Their risk was that the court would dismiss the claim as they can not show there is a claim based in law.

 

The local agent will ask for either an adjournment to get the paperwork and further instruction or to sist the action which is an indefinite longer adjournment

 

you don't want either and if there is to be one get the adjournment as at the next calling if they don't produce it you will definitely have it dismissed.

 

I would then ask the court "that as a lay man with no understanding of the law or court procedure that the pursuing solicitors should know the law and know the risks".

 

They have admitted it is unenforceable therefore have no case in law and the court should dismiss the case in your favour and not allow the pursuer the time to do the work they should have done before starting the action.

 

That in dismissing the claim you understand that the pursuer may choose to raise an action again at a future date.

 

If the sheriff agrees with you ask for expenses and claim expenses state that as party litigant you are entitled to 2/3 scale of that as allowed by solicitors under the act of sedurant.

 

It all is based on the CCA letter replies.

 

So fingers crossed you get those.

It will just kick things into the long grass for a while until

but more probably IF cabot get their hands on the paperwork.

 

You are miles away from needing the trust deed so don't rush to tie yourself up with that millstone just yet.

 

As I say you can wait to get decree against you before you need to go down that route

 

for piece of mind go to CAB and speak about the trust deed

they will confirm wait till decree.

 

Repossession when they don't have a charge over the property protracted and if you're married with kids takes a long time.

 

More than likely if they had a decree they would serve and inhibition on you i.e. you can't sell your house and if you do they need to be paid from the proceedings.

 

I hope this puts your mind at rest a little

 

you have options and strong chance the paperwork is not available in short or long term.

No need to rush to trust deed.

 

Better more knowledgable people on here will help, just thought my experience might be of use.

Edited September 30, 2015 by deimosboy

[dx100uk]

Great post!!

What date was your agreement supposedly?

 

Dx

[McGoo72]

Thanks for the replies folks. I'll get back to this first thing in the morning

 

 

The 07 is the intention to defend?

Yes I went to the court and lodged that with the Clerk's office and paid the £90. That was in for the 25-9-15.

 

11-11-15 is the last day for making adjustments to Defences.

 

20-11-15 last day for intimating, together with your grounds, a note of any Preliminary pleas.

 

25-11-15 Options Hearing

 

There was nothing on that form stating I wanted copies of all their paperwork though,

I'm not sure where this comes from.

I have written to Cabot but they have never replied.

 

The loan itself was with Bank Of Scotland, taken out in May 2011 for £25,000.

 

Payments were £546 per month which I paid until around August 2012.

 

The loan was taken out in joint names by my wife and I but Cabot have only come after me for the debt which is a bit odd.

 

I have previously dealt with DCAs regarding this debt.

Albion Collections Ltd,

Wescot Credit Services Ltd

and Capquest all wrote to me

but stopped after I did the three letters.

 

I did receive a letter from BoS in May of 2013 telling me they had "transfered the account to Wescot".

I haven't received anything else from them about any other DCA.

 

Cabot have never written to me by the way. Ever.

 

Thanks very much for your reply deimosboy.

 

I have read through your thread and it is becoming clearer to me that Cabot do this regularly with no real possibility of a successful claim in court unless the Defender panics and admits it.

 

That is pretty much what I very nearly did,

they would have got some money through the trust deed.

 

They are phishing and trying to bully and intimidate people into giving money they are not entitled to.

 

Again. Many thanks for the reply.

I'm trying to sort everything out in my head and get a plan of how to deal with this. I'll get back to you with more questions soon no doubt.

 

I think deimosboy must be able to see into the future

 

I received the attached letter by recorded delivery today.

 

It would seem that they do not have any of the relevant paperwork, as you rightly predicted.

[honeybee13]

Thanks very much for your reply deimosboy. I have read through your thread and it is becoming clearer to me that Cabot do this regularly with no real possibility of a successful claim in court unless the Defender panics and admits it. That is pretty much what I very nearly did, they would have got some money through the trust deed. They are phishing and trying to bully and intimidate people into giving money they are not entitled to.

 

I think you've learned a lot since yesterday, haven't you? It was good of deimosboy to share their experience - I hope that's made you feel better about things. You're not on your own now.

 

HB

[McGoo72]

 

Definitely. It did feel like I was heading into unknown territory but it's great to know others have already been there - and won!

[dx100uk]

so have you sent cabot a cca request

if not do so

[McGoo72]

I hadn't so I off to send it recorded delivery now.

[dx100uk]

that might be a wise move

whatever you have sent in the past

could well be ignored

 

however they cannot ignore an official CCA request

 

blank £1PO

don't sign anything

 

 

you don't need to send recorded

just get free proof of posting when you get the PO

 

 

dx

[Dookist]

 

What or who are the "Three Letter Crowd", please?

[dx100uk]

Freeman of the land rubbish

[McGoo72]

I sent off the CCA request to Cabot on 1st October. I reckon they get until the 21st October to reply.

What happens if they don't respond at all?

[dx100uk]

post 10 I think outlines the best i've seen.

 

 

dx

[deimosboy]

My first letter CCA request was sent on 16th June,

dated response was 22nd acknowledging receipt of my CCA that they did not have documentation

but they would request them from the original lender

they acknowledged the 12 day rule but expected to have papers within 40 days.

Not sure the relevance of the 40 days.

 

Further letter dated 14th Aug stated they were unable to comply

and therefore would be unable to obtain a decree against me in court but i should still pay - yeah right!

 

If they are just churning these letters out as standard responses

you should expect the first acknowledgement letter soon.

 

Make sure you have a copy of the letter you sent and proof of postage

and more importantly delivery to present to the court at the calling should you not hear anything.

 

Again don't send anything to their solicitor,

you can do an incidental application if the sheriff sets a proof diet

and lodge a defence 14 days before the proof diet.

 

Again as before if you get the response with no documentation argue as they are not the original lender.

 

"They have not complied with your statutory request (have a printout of the sections of the statute, perhaps someone here can post it up or a link)

if they do not have the paperwork they can not know if they have a claim in law.

 

 

They have raised the action speculatively and as such understood the risk that without any foundation to their claim

the court may choose to dismiss the action at this hearing today as it is for the pursuer to prove their claim and not for the defender to disprove.

 

 

You would therefore hope that the court agrees with you and ask the court to dismiss rather than adjourn or sist

as you understand a dismissal would still allow the pursuer to bring forward any action

should they find the paperwork and believe they have a claim in law."

 

If you don't get the response letter from them its is the same argument

except hand copy of the letter and proof of delivery to the clerk at the court.

 

 

"That upon receiving the summons you immediately sent the CCA request under the provisions of the statute,

that as the pursuer have failed to comply,

under the the statute they have no claim in law to pursue the matter and ask the court to dismiss."

The same speculative argument should be made.

 

The absurd thing is that I think they have more chance getting the adjournment

without responding so fingers crossed you get the response.

 

Also just wanted to say I got my expenses cheque in the post the other day and the decree extract of dismissal.

 

The breakdown of the expenses allowed in my claim again based on 2/3'rds of lawyers scale charges from act of sedurant

 

Initial Hearing

CCA letter £25 (full)

Preparation for the hearing £213 @ 2/3 = £142

Attending hearing £35 per hour @ 2/3 =£23.66

Mileage at 45p per mile as per HMRC rates =£30

Parking =£2.50

 

Second hearing for agreeing expenses

Attending the expenses diet and preparation £142 @ 2/3 = 94.66

Mileage a 45p per mile as per HMRC rates =£30

Parking =£2.50

 

I would suggest this is the maximum you can claim as it is based on the statutory described fees.

The "account of expenses" claim must be sent into court with proof and in the correct layout for the court.

 

 

I am self employed so my hourly rates made my original claim more than that awarded as I had charged for my travel time to and from court.

I guess if you are employed you can use your payslip to get your hourly rate and holiday time lost for appearing etc.

 

Not sure why you paid the court £90

i did not have to pay anything

just sent by my paperwork by post

but make sure you claim this back on top of the above.

 

Fingers crossed you get a letter from them before the hearing

stating they have nothing at this point

but will continue to get them from original lender.

 

For piece of mind if you are still under stress of all of this go to the CAB and get them to explain the worst case scenario

i.e. the have the paperwork which stands up.

They will put your mind at rest as to the likelihood of an unsecured debt resulting in a repossession

and how quickly you could have a trust deed in place.

 

Having been through the mill (trust me I went to the darkest place you can go)

the best and logical bit of advice i received was this.

 

You have to understand that if something is out with your control and you have no way to affect the outcome,

then accept that you cannot change what will or will not happen.

 

 

When you realise this and accept it the panic attack, stress tightening in your stomach,

sick feelings that occur when thoughts of the matter come into your head become less impactful.

 

 

What i mean is, reality takes over more quickly,

the stress of it all dissipates quicker

and does not eat away so much as the rational thoughts take over.

 

 

If you can not affect the outcome you can only plan for what to do in different scenarios.

 

 

If A happens then I have to do X,

If B happens then I have to do Y.

This is empowering as you are in control

, X might be a ****ty option

but you will deal with it and know how to deal with it.

 

 

This is not positive thinking mumbo jumbo, simply logical thinking.

 

 

"I can't change what is going to happen so why am I letting it consume me"

when this thought process starts to take hold everything is easier to deal with.

 

Update if you get anything or if you have anything to ask.

Edited October 11, 2015 by deimosboy

[deimosboy]

Did you send the CCA to Optima or direct to Cabot?

[McGoo72]

I sent it to Cabot directly.

[deimosboy]

My action was summary cause and not ordinary cause, so this is a bit more formal and my worry would be falling foul of procedure with a stuffy sheriff.

 

You will have to lodge an objection to the motion.

 

But first thing I would do today is see if there is a in court adviser/s solicitor with the Citizens Advice. Also try Falkirk Community Advice Service 01324 659 391. They may appear for you but certainly will help at the least keep you procedurally right and draft any forms.

 

You probably qualify for legal aid so could be worthwhile speaking with a solicitor, but bear in mind they make money by going to court not by getting something dismissed at the first opportunity!

 

I would do my perry mason bit first and try to get it dismissed but fall back upon them if it goes to the full hearing next year.

 

Right if it were me I would through the dice here and still try to get this thrown out, so would lodge an objection to the motion. Being ordinary cause you may have to lodge a written motion rather than ask for a motion if it it were summary cause. This is where the advice will be helpful.

 

There may be some on here that can help explain and draft what you need.

 

So you need to download form G9a or G9 from here

 

 

copy the court details as per the summons received court, date, names etc. and email to court an coy in optima.

check with the court as you will have a hearing for this motion to be heard.

 

at this hearing, and this is where the advice is needed, in my bag i would have a g6 form completed with a motion to dismiss.

 

the points which i would make in a cohesive statement are the following

 

1) under the consumer consumer credit act 1974 sections 77-79 a debtor if supplied a request in the correct form must provide documentation relating to the loan within 12 working days failing which the debt can not be enforced in law.

2) this 12 day period has passed and this debt is not enforceable under the provisions of the act.

3) cabot are not the original lender, you have had no dealings with them.

4) there has been no correspondence from cabot, you have received no correspondence from the original lender

5) no deed of assignation has been supplied again required under the act.

6) it is clear that the response to your cca request cabot do not have this paperwork.

7) it is therefor unclear whether they do hold any rights to this debt.

cabot have chosen to bring this claim to court without having any papers, they can not be in a position to know if they have any claim in law.

9) their solicitors would have advised them the court has three options to sist, adjourn or dismiss the claim.

10) you crave the court to dismiss the claim as clearly the cabot brought the claim to court when it has no legal foundation to be heard. i

n failing to comply under the consumer credit act 1974 sections 77-79 the matter can not be heard until they have complied.

 

i would explain verbally that there is no looming time bar impediment should the pursuer find the documentation and be in a position to present their claim to a court they would be free to do so.

 

if the sheriff is not minded to dismiss then ask for a short adjournment rather than a sist to allow the pursuer to get the paperwork but if they failed to do so you would request the court dismiss the matter at that time should they fail to do so.

  

at the hearing on the motion let them speak and then you speak when asked to do so.

explain that this is all very stressful and that having a matter resting in court hanging over you when the pursuer can demonstrate no legal claim is unfair.

you are unsure upon procedure (even if you are just play act) but you would ask the court to dismiss,

you have a motion (take three copies) give one to the clerk and one to their solicitor.

when you hand it over say you hope it is drafted correctly.

i would then mutter just as the sheriff finishes reading that it can't be the case as a layman something be brought to court which legally it should and the court not agree with the defender as it is upto the pursuer to prove their claims and it is not for you to disprove.

they are unable to do so, knew they were unable to do so and knew the risks.

 

now let it hang in the air and see what the reaction is by the sheriff.

  

two things your motion to dismiss may be heard at the sist hearing or you may have to wait to the options hearing.

that is what i am unclear on.

if you get the advice you will know but even if you don't be prepared for both options.

 

my thoughts are that even if it is not dismissed it can only be sisted or adjourned.

at this point i have not lodged a defence, i have not lost any legal argument or foundation, i have not aided or weakened my position even if i chose later to engage a solicitor.

the adjournment and the sist both allow for the same argument to be made at a future hearing where it would more likely then be dismissed.

 

others may add to this or come at it from a different perspective which may be better advice.

 

if it is dismissed remember to ask for expenses also.