MEIII [CABOT]/Nolans SPC Claim - old Yorkshire Bank Loan *** 2nd Claim Dismissed***

[dx100uk]

as post 7 still no default notice

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?479254-Arrow-Shoos-SPC-Old-NewDay-Aqua-Credit-Card-Debt-***Claim-Dismissed***/page2

[erinbrooke]

Thanks DX, is that the right link as Post 7 just says 'The claimant'...

[dx100uk]

as post 20 on your [this] thread

 

read the whole thread in the link I sent

[erinbrooke]

Ahh, right, understood.

 

What would my next step be?

 

Also, is the lack of a full statement from day one relevant?

[dx100uk]

you be filling in the response form again

 

yes the statements upon how the balance has come about still has not answered the query regarding charges etc in your 1st response form.

[dx100uk]

responding to pm...

But around on thursday??

[erinbrooke]

No. I'm away from tomorrow morning till Friday afternoon....

[dx100uk]

Thanks for the heads up!

You can send it to the clerk of the sheriff by email whilst away?

[erinbrooke]

Yes, I think thats what I did the last time.

Its just how I would scan it... I wonder if I could fill the form in online if I took my laptop..?

[dx100uk]

All downloadable in our sticky here

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?476735-What-To-Do-Simple-Prodedure-Rule-Claims-Scotland

[dx100uk]

my thoughts are to go with our standard reply

[the one we used before] as this could be heard by a different sheriff

but to add a bit at the end

so

………….……..

 

D1.

 

As a respondent I specifically make reference to the Simple Procedure Rules 2016 in so far as my understanding is that:

 

1.4(2)

The Sheriff must ensure that parties who are not represented, or parties who do not have legal representation, are not unfairly disadvantaged.

 

I represent myself and am totally at a loss upon how to respond to such a claim & welcome any assistance the sheriff can give me.

 

1.6(9)

When appearing against a party who is not represented, or who is not legally represented, representatives must not take advantage of the party.

 

1.6(10)

 

When appearing against a party who is not represented, or who is not legally represented, representatives must help the court to allow that person to argue a case fairly.

 

I expect the claimants' representative to employ the above.

 

 

The Claimant is a well known Debt Buyer or debt collection Agency that purchases large debt portfolio 'En-Masse' for discounted Pence to Pound reduced values.

 

These debt portfolios, be them direct from the Original Creditors or exchanged under sales between like Debt Buying Organisations, were placed for sale because the Original Creditor neither wished to litigate against their customer themselves due to bad publicity or are typically related to issues of enforceability under the consumer credit Act or are as a result of inflated sums due to penalties and or interest levied upon them that are unfair & unlawful under FCA regulations.

 

According to s.189 of the Consumer Credit Act 1974 when an assignee purchases debts [or otherwise acquires rights under a credit agreement] it also acquires certain obligations to the borrower including the duty to comply with CCA requirements, such as the rules on statements and notices and other post-contractual information. The assignee becomes the creditor under the agreement, thereby ensuring that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

I have had financial dealings with Yorkshire Bank in the past.

I do not recall the precise details or agreement and have sought verification from the claimant who has not fully complied with my request for further information.

 

The Respondent puts the Claimant to strict proof provide under the Consumer Credit Act the required documents to legally be able to enforce and bring this claim to court namely:

 

The Signed Original Consumer Credit Agreement.

The Notice Of Assignment.

The Default Notice Issued By The Original Creditor Under Section 87/1 CCA 1974.

 

A detailed statement of the account and how, with specific reference toward additional interest added because of late/no payment, and any additional penalty fees or interest added, have resulted in the balance now claimed.

 

The court will be aware that penalty charges and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009).

I will contend at trial that such charges are unfair in their entirety.

 

the claimant raised a pervious claim number xxx that was dismissed by sheriff xxxx on date …..due to their failure to supply any paperwork I had request.

 

although for this new claim the claimant has supplied some documentation required under the Consumer Credit Act, they have failed to fully comply to enable any enforcement under the act.

 

…………..

 

I have specifically not told them what they have wrong [re no default s87]

this may cost them more money and get you more expenses the more hearing

 

there was a gent in Glasgow last week that had had 3 hearings

costs were refused at the first two

hes just got 3 days lost wages at £90 a pop.

[dx100uk]

andy if you could pop in when you have 2 mins with my thoughts above please

it would mucho appreciated,

 

dx

[erinbrooke]

Thanks ever so much DX, this second claim has got my wife and I particularly worried as we thought it was over after the last dismissal...

 

If my last date for response is Thursday 14 June can I email the court tomorrow night after work?

[AndyOrch]

Im not familiar with the Scottish procedure but in England & Scotland the claimant must seek the courts permission to represent a claim thats been previously dismissed....otherwise it falls away under Res Judicata ... also known as claim preclusion, Latin term for "a matter [already] judged"

 

Is the above your intended response DX ?

[dx100uk]

at present yes

though that's why I asked you,

 

it certainly applies in Scotland:

Res judicata A question decided in competent legal proceedings, which cannot again be raised.

[AndyOrch]

Then I think it requires re drafting..not really suitable for a second defence on claim already litigated and dismissed.

 

Will it be the same Sheriff presiding ?

[dx100uk]

unknown sadly andy

twill be the same court mind but that's as far as we know.

 

thaks!!

dx

[AndyOrch]

I will take a look in the morning and re draft for lunch time...with fresh eyes

[dx100uk]

great stuff.

 

erin stay happy..

 

dx

[erinbrooke]

Thanks DX & Andy.

 

Will I still be OK to email my response later tonight out of Court hours?

[AndyOrch]

Particulars 16/11/17

 

1.On 15/11/2002 the Respondent entered a Fixed-Sum Loan Agreement with Yorkshire Bank under which the Respondent borrowed from them a sum of money repayable on demand. The said agreement was an agreement regulated under the consumer credit Act 1974.. The Respondent failed to pay as agreed on demand and is in breach of con//tract with the said YORKSHIRE BANK.

 

2.the said supplier assigned all rights in the said debt to ME III Limited on 01/09/2010. and the Claimants have advised the Respondent of same.

 

3.The last payment made to account on 28/04/2016 The said sum of £XXXX.XX is the sum sued for.

 

4.The Claimants have made frequent requests to the Respondent to make payment of the said sum but the Respondent has refused or delayed to do so.

 

 

Particulars 24/5/18

 

1.On the 15/11/2002 the Respondent entered a Fixed Sum Loan Agreement with Yorkshire Bank under which the Respondent borrowed from them a sum of money repayable by 83 installments of £94.53.The said agreement was an agreement regulated under the Consumer Credit Act 1974.

The Respondent failed to pay as agreed and is in breach of the contract with the said Yorkshire Bank

 

2.The said supplier assigned all rights in the said debt to MEIII Limited on the 01/09/2010 and the Claimants have advised the Respondent of same.

 

3.After the breach and termination of the agreement the Respondent agreed lesser installments of £5.27 through a company called Debt Managers.The last payment was made to the account on 28/04/2016 and the balance of £1374.61 is due and resting to the claimants.

 

4.The said sum of £1374.61 is the sum sued for.The claimant has made frequent requests to the respondent to make payment of the said sum but the Respondent has refused or delayed to do so.

 

 

Enclosures....

 

Copy agreement dated 15/11/02...credit application.....intimation of assignation from Yorkshire Bank......intimation of assignation from the Claimants....and statement of account are attached hereto and are referred to for the terms which are held to be incorporated herein

[AndyOrch]

Defence /Response.......

 

I the Respondent make the following response to this claim dated 24/05/18. case reference number xxxxxxxxxxx.

 

The Claimant MEIII [CABOT] have already brought this claim once on the 16/11/17 and was adjudged and dismissed on 21/12/17 by the Sheriff of Sheriffdom of xxxxxxx for failing to comply with court directions.

 

It is therefore averred that it is an abuse of process and the Claimant estopped from bringing the present claim, this claim preclusion be dismissed as a preliminary issue if under res judicata.

 

By reason of the facts and matters set out above, pursuant to the principles of res judicata and more specifically issue estoppel it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Enclosures....Copy of previous SCC/Defence/ Notice of Dismissal.

[dx100uk]

thanks andy

 

EB you can email it anytime you like!

[AndyOrch]

I would also attach copies of the previous SPC and your defence and the Court Order for dismissed

[dx100uk]

good thinking batman

EB if you are unable to do that give me a shout and I can make the PDF's to attach to the Email for the court

 

dx