Arrow/Shoesmiths scottish claim MBNA credit card debt

[jasser]

Hi Guys,

 

I was looking for some advice regarding the CCA being attached to the initial summons here in Scotland.

 

I have seen it mentioned here a few times while browsing some threads but can't find a reference to it in the court rules, can anyone point me in the right direction, thanks.

[maroondevo52]

Hello and welcome jasser,

 

Could you give us the story of the debt please.

[dx100uk]

sadly that was a condition that was removed some months ago.

[dx100uk]

Credit agreements in Scotland from 1st Decemeber 2009

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Scottish court change ‘threatens recovery’ - 02/10/2009

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Creditors and debt buyers will be unable to recover debts through the Scottish courts unless they have copies of regulated agreements, under new rules.

.

Experts are calling on those who use the Scottish courts to send representation to the Sheriff Court Rules Council, which initiated the change to the court rules. The change is due to be implemented on 1 December. From then, court actions regulated by the consumer credit Act 1974 will require a copy of the regulated agreement which will have to be attached to the writ or summons.

.

The council’s secretariat has told solicitors that individual sheriffs will take their own view as to what constitutes a copy and they may require a photocopy of the agreement rather than a ‘reconstituted copy’. Stephan Cowan, managing partner of Yuill & Kyle Solicitors, said this is surprising as creditors are usually required to provide ‘true copies’. "A true copy does not mean an exact copy and there is case law to support this," he said.

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The impact on lenders and debt purchasers could be significant as many financial institutions are only able to provide a ‘reconstituted copy’ – repopulating a template from computer records. They are bound to litigate in the debtor’s domicile and so would not be able to recover those debts.

.

The stance also differs from that taken by the Office of Fair Trading, which states that creditors must provide ‘true copies’ under sections 77 and 78 of the Consumer Credit Act and accepts reconstituted copies as valid.

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The Rules Council is meeting on 6 November and has said it is willing to receive representations from creditors and industry groups concerned about the change. It can be contacted at [email protected] k (0131 221 6766) or by letter at: The Secretary, Sheriff Court Rules Council, Hayweight House, 23 Lauriston Street, Edinburgh EH3 9DQ.

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There is also an article written by YUILL & KYLE (BANKS SOLICITORS) that i have pasted for your to read:

Scottish court change threatens recovery'

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At the beginning of this week we highlighted important court changes in the pipeline. Following on from this, please see the below Credit Today article for Stephen Cowan´s views on the implications these changes will have.

.

Scottish court change ´threatens recovery´

.

Creditors and debt buyers will be unable to recover debts through the Scottish courts unless they have copies of regulated agreements, under new rules.

.

Experts are calling on those who use the Scottish courts to send representation to the Sheriff Court Rules Council, which initiated the change to the court rules. The change is due to be implemented on 1 December. From then, court actions regulated by the Consumer Credit Act 1974 will require a copy of the regulated agreement which will have to be attached to the writ or summons.

.

The council´s secretariat has told solicitors that individual sheriffs will take their own view as to what constitutes a copy and they may require a photocopy of the agreement rather than a ´reconstituted copy´. Stephen Cowan, managing partner of Yuill + Kyle Solicitors, said this is surprising as creditors are usually required to provide ´true copies´. "A true copy does not mean an exact copy and there is case law to support this," he said.

.

The impact on lenders and debt purchasers could be significant as many financial institutions are only able to provide a ´reconstituted copy´ - repopulating a template from computer records. They are bound to litigate in the debtor´s domicile and so would not be able to recover those debts.

.

The stance also differs from that taken by the Office of Fair Trading, which states that creditors must provide ´true copies´ under sections 77 and 78 of the Consumer Credit Act and accepts reconstituted copies as valid.

.

The Rules Council is meeting on 6 November and has said it is willing to receive representations from creditors and industry groups concerned about the change. It can be contacted at [email protected] (0131 221 6766) or by letter at: The Secretary, Sheriff Court Rules Council, Hayweight House, 23 Lauriston Street, Edinburgh EH3 9DQ.

.

Best regards,

.

Stephen Cowan

Managing Partner

Yuill + Kyle

Debt recovery + Credit control Lawyers, Scotland

[email protected]

.

W: http://www.debtscotland.com/

T: 0141 331 2332

Debt Recovery Ignited!

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.....................

( www. legislation.gov.uk/ssi/2009/294/made )regarding new rules for regulated agreement.

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.

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Scottish Statutory Instruments

2009 No. 294

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Sheriff Court

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009

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Made

18th August 2009

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Coming into force in accordance with paragraph 1(1) and (2)

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The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971(1) and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:

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Citation, commencement and interpretation

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1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009 and, subject to subparagraph (2), comes into force on 1st October 2009.

(2) Paragraphs 2 to 7 come into force on 1st December 2009.

(3) This Act of Sederunt is to be inserted in the Books of Sederunt.

(4) In this Act of Sederunt—

“the 1988 Rules” means the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988(2);

“the Ordinary Cause Rules” means the Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907(3);

“the Summary Application Rules” means the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999(4);

“the Summary Cause Rules” means the Summary Cause Rules in Schedule 1 to the Act of Sederunt (Summary Cause Rules) 2002(5); and

“the small claimicon Rules” means the Small Claim Rules in Schedule 1 to the Act of Sederunt (Small Claim Rules) 2002(6).

Time to pay directions and time orders

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2.—(1) The Ordinary Cause Rules are amended in accordance with the following subparagraphs.

(2) After rule 3.2 (actions relating to heritable property) insert—

“Actions relating to regulated agreements

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3.2A. In an action which relates to a regulated agreement within the meaning given by section 189(1) of the consumer crediticon Act 1974(7)—

(a)the initial writ shall include an averment that such an agreement exists and details of that agreement; and

(b)a copy of the regulated agreement shall be attached to the initial writ.”.

(3) In rule 7.3 (applications for time to pay directions or time orders in undefended causes)—

(a)after paragraph (2) insert—

“(2A) As soon as possible after the application of the defender is lodged, the sheriff clerk shall send a copy of it to the pursuer by first class ordinary post.”; and

(b)for paragraph (4) substitute—

“(4) Where the pursuer objects to the application of the defender made in accordance with paragraph (2) he shall on the same date—

(a)complete and lodge with the sheriff clerk Form O3A;

(b)minute for decree in accordance with rule 7.2; and

©send a copy of Form O3A to the defender.

(4A) The sheriff clerk shall then fix a hearing on the application of the defender and intimate the hearing to the pursuer and the defender.

(4B) The hearing must be fixed for a date within 28 days of the date on which the Form O3A and the minute for decree are lodged.”.

(4) In the Schedule, for Form O3 (form of citation where application for time to pay direction and time order may be made) substitute the forms set out in Schedule 1 to this Act of Sederunt.

3.—(1) The Summary Application Rules are amended in accordance with the following subparagraphs.

(2) In rule 2.4 (the initial writ)(8), after paragraph (4) insert—

“(4A) In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974—

(a)the initial writ shall include an averment that such an agreement exists and details of the agreement; and

(b)a copy of the regulated agreement shall be lodged with the initial writ.”.

(3) In rule 2.22 (applications for time to pay directions or time orders)—

(a)in paragraph (2)(b) for “seven” substitute “14”;

(b)for paragraph (3) substitute—

“(3) On lodging an application under paragraph (2)(b), the defender shall send a copy of it to the pursuer by first class ordinary post.

(4) Where the pursuer objects to the application of the defender lodged under paragraph (2)(b) he shall—

(a)complete and lodge with the sheriff clerk Form 5A prior to the date fixed for the hearing of the summary application; and

(b)send a copy of that form to the defender.

(5) The sheriff clerk shall then fix a hearing in relation to the application under paragraph (2)(b) and intimate the hearing to the pursuer and the defender.

(6) The sheriff may determine an application under paragraph (2)© without the defender having to appear.”.

(4) In Form 4 in the Schedule (form of warrant of citation etc.), in paragraph (b), for “seven” substitute “fourteen”.

(5) For Form 5 in the Schedule (form of notice etc.), substitute the forms set out in Schedule 2 to this Act of Sederunt.

4.—(1) The Summary Cause Rules are amended in accordance with the following subparagraphs.

(2) After rule 4.2 (statement of claim) insert—

“Actions relating to regulated agreements

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4.2A. In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974—

(a)the statement of claim shall include an averment that such an agreement exists and details of the agreement; and

(b)a copy of the regulated agreement shall be attached to the summons.”.

(3) In rule 7.2 (application for time to pay direction or time order)—

(a)after paragraph (1) insert—

“(1A) The sheriff clerk must on receipt forthwith intimate to the pursuer a copy of any response lodged under paragraph (1).”;

(b)in paragraph (2), for “two days” substitute “9 days”; and

©for paragraph (4) substitute—

“(4) If the pursuer wishes to oppose the application for a time to pay direction or time order made in accordance with paragraph (1)(a) he must before the time the sheriff clerk’s office closes for business on the day occurring 9 days before the calling date—

(a)lodge a minute in Form 19; and

(b)send a copy of that minute to the defender.”.

(4) For Form 1a (summons) in Appendix 1 substitute the form set out in Schedule 3 to this Act of Sederunt.

(5) For Form 19 (form of minute) in Appendix 1 substitute the form set out in Schedule 4 to this Act of Sederunt.

5.—(1) The Small Claim Rules are amended in accordance with the following subparagraphs.

(2) After rule 4.2 (statement of claim) insert—

“Actions relating to regulated agreements

.

4.2A. In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974—

(a)the statement of claim shall include an averment that such an agreement exists and details of the agreement; and

(b)a copy of the regulated agreement shall be attached to the summons.”.

(3) In rule 8.2 (application for time to pay direction or time order)—

(a)after paragraph (1) insert—

“(1A) The sheriff clerk must on receipt forthwith intimate to the pursuer a copy of any response lodged under paragraph (1).”;

(b)in paragraph (2) for “two days” substitute “9 days”; and

©for paragraph (4) substitute—

“(4) If the pursuer wishes to oppose the application for a time to pay direction or time order made in accordance with paragraph (1)(a) he must before the time the sheriff clerk’s office closes for business on the day occurring 9 days before the hearing date—

(a)lodge a minute in Form 13; and

(b)send a copy of that minute to the defender.”.

(4) For Form 1a in Appendix 1 (summons) substitute the form set out in Schedule 5 to this Act of Sederunt.

(5) For Form 13 in Appendix 1 (form of minute) substitute the form set out in Schedule 6 to this Act of Sederunt.

6. But the Ordinary Cause Rules, Summary Application Rules, Summary Cause Rules and Small Claim Rules as they applied immediately before 1st December 2009 continue to have effect for the purpose of any application for a time to pay direction or a time order made in connection with an initial writ or summons, as the case may be, lodged before that date.

Return, calling and hearing dates

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7.—(1) In rule 4.5(7) of the Summary Cause Rules (period of notice), for “seven days” substitute “14 days”.

(2) In rule 9.1(3) of the Small Claim Rules (the hearing), for “seven days” substitute “14 days”.

(3) But rule 4.5(7) of the Summary Cause Rules and rule 9.1(3) of the Small Claim Rules as they applied immediately before 1st December 2009 continue to have effect for the purpose of any summons lodged before that date.

[jasser]

Hi, thanks for the reply, I thought that might have been the case but wasn't 100% certain.

[jasser]

Hello and welcome jasser,

 

Could you give us the story of the debt please.

 

Hi, sorry missed this somehow.

 

It's a credit card from the early 2000's, defaulted and then eventually sold on.

 

 

I've already been to court and the Sheriff allowed more time for the agreement to be produced.

 

 

I have a lawyer friend who is helping me out and had been wondering about this as I'd seen it mentioned a few times.

 

 

Dx100uk has confirmed that it is not required though, pity.

[dx100uk]

not cabot is it?

 

 

if so I'd expect it to get thrown out bu or at the next hearing.

 

 

dx

[jasser]

Hi, no it's Arrow.

 

Yes, hopefully they won't produce anything. I made the mistake of not doing a CCA request before the first hearing, do you think it worthwhile to do one now? Thanks.

[dx100uk]

yes

whats the debt and the original creditor please

and who are the sols?

 

 

was this taken out whilst down south or always in Scotland

 

 

full history please

[jasser]

Hi,

 

Always been in Scotland.

 

The debt is a credit card taken out in 2001.

 

 

Mbna defaulted me in July 2010 with a balance of approx £2500

then sold the debt onto Arrow sometime afterward,

It's been passed round a few agencies since.

 

Handn't heard anything for what must have been a year

then received a small claims summons in July,

the solicitors acting for Arrow are Shoosmiths.

 

At the first hearing no documents were produced and the sheriff asked for the agreement

and gave them time to do so, back at court the end of the month.

 

I have now sent a CCA request to Arrow.

[dx100uk]

if MBNA defaulted you in july 2010 have you paid or used the card since then>

 

 

dx

[jasser]

The card hadn't been used for a few years before. The default date is the end of July and the last payment was the start of August 2010.

[dx100uk]

then the crafty buggers just got it in

under the Scottish sb rules 5yrs..its extinguished

 

 

dx

[jasser]

Yeah, just.

[jasser]

Hi guys,

 

just an update to say that I've received a reply to the CCA request which states they are unable to obtain the agreement from the original creditor. They also say that there will be no collection activity until they get the document and provide me with a copy.

[dx100uk]

usual reply

 

 

prob don't even know there a claim going on.

 

 

so don't take that as the claim is dropped.

 

 

good armoury for your hearing mind.....

[jasser]

No, wouldn't assume that the claim is dropped. Am I right in saying that failure to comply with a s.78 request is a bar to enforcement?

[dx100uk]

fatal to their cause

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/showthread.php?430379-Arrow-Shoosmith-MBNA-card-Scottish-claim-**CLAIM-DISMISSED**

[jasser]

Cheers, here's hoping they don't produce it then.

 

Thanks for the link, appreciated.

[jasser]

One other question. If this is dismissed would it automatically become statue barred as the last payment was made in Aug 2010?

[dx100uk]

I believe so yes

 

 

a court claim only stalls the clock

 

 

dx

[jasser]

Hi guys,

 

Just to let you know this was dismissed,

can claim expenses as well if I wish.

 

At first it appeared they hadn't turned up as when the clerk was checking the cases there was no one there representing them.

One of the solicitor agents must have contacted them because when it was called they said that Shoosmiths had apparently got the hearing date wrong

, which I thought strange, it didn't impress the Sheriff though who told them tough.

 

They then asked for a continuance to allow them time to lodge productions, even though they had already lodged some.

My friend objected stating that at the last hearing they had been ordered to produce the agreement at this hearing,

he then made a motion for dismissal,

the clerk then read out the order allowing them ten weeks to produce the agreement.

 

When the Sheriff heard the order she dismissed it straight away,

more or less saying you've not complied with it even though you've had plenty of time to do so,

again she didn't seem impressed with them,

the whole thing was over in about five minutes,

didn't even have to bring up the s.78 request.

 

The Sheriff was very good to be honest,

she was great with a guy who was up before me,

talking them through what they needed to do

and how to go about it, the way it should be.

 

Thanks again to dx for their advice and also a thank you to the site in general

as the information on here is invaluable to someone like me.

[dx100uk]

hoho

usual outcome for cabot in Scotland.

 

 

as long as the defendant defends the claim

 

 

for anyone reading THATS THE MOST IMPORTANT THING!!

 

 

was this a claim 1a

 

 

dx

[jasser]

Yes, it was a small claims 1a, it was also Arrow Global rather than Cabot.

 

Couldn't agree more on defending,

apparently over 90% of in Sheriff Court civil actions go undefended with most of them being debt recovery.

 

 

I think that's what they were hoping for in my case as it was a purely speculative claim,

it's ridiculous they can get away with bringing these types of claim

when they have no documentation to back it up.

 

 

I assume they lie on most of the statements of claim when it comes to the agreements,

mine claimed there was an agreement and that it said blah blah blah

when quite clearly they had no idea if there was one never mind what it said on it.