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

[erinbrooke]

Yes, and he suggested that I returned with a better defence...

 

He even asked me why I needed to see them..!!

[dx100uk]

ok the more the merrier

get typing up other things you remember the sheriff saying and were told

might seem immaterial to you ...but the littlest thing could help you.

 

how many were there and how far down the list were you?

[erinbrooke]

I would say, on the whole, he did not seem impressed by my defence or the case in general.

 

Before I even spoke he shut me down regarding the Res Judicata that I had rested me defence on in the 4A Form and made a point of telling the clerk to include his comments in the notes. He said that it was irrelevant as he not not made a Decree of Dismissal or Decree of Absolvitor (i think thats the word) so they could come back as many times as they like.

 

He asked what my defence was which I replied the Res Judicata was and that he had already dismissed this claim, so he brushed past that.

 

I went on to state that the there had been PPI included in the amount being chased which is around 96% of the figure which he also did not seem impressed with and told me that had nothing to do with it.

 

He asked why I wanted the full statements because surely I already had them, to which I responded that I did not. (Again an unimpressed expression from him) When I said that I needed to see if there were had been any charges levied against me that shouldn't have been he seemed to accept the requirement of the statements and that was when he made the Order to give N0lans 3 weeks to seek the relevant docs.

 

I then asked what would happen if they did not come up with them in 3 weeks to which I was told (with a frown) that he would think about it again at that point....

 

All in all it was not a great experience.

 

Looked about another 7 or 8 cases, I was number 4 or 5 I think. Not a lot of people there to be honest but still not the most private environment for delicate matters.

[dx100uk]

ok good.

its good he boxed away the issue with using RJ and didn't let that cloud other issues you raised later.

 

did he tell them to produce the default notice, or make any ref to its absence?

[erinbrooke]

Yes, that also has to be produced within 3 weeks. however I get the feeling that is to satisfy ME rather than a legal reqauirement

[dx100uk]

I would hope not

otherwise the sheriff is trying to rewrite the CCA section 87!!

 

and I specifically know that same sheriff has dismissed 2 cases whereby the claimant failed to supply the default notice even with a signed agreement that was enforceable....

something not sitting right here....

[erinbrooke]

Well let's hope I'm wrong.

[AndyOrch]

" Before I even spoke he shut me down regarding the Res Judicata that I had rested me defence on in the 4A Form and made a point of telling the clerk to include his comments in the notes. He said that it was irrelevant as he not not made a Decree of Dismissal or Decree of Absolvitor (i think thats the word) so they could come back as many times as they like. "

 

1. Decree in favour of the pursuer

 

This means that the pursuer has been successful, either totally or partially, in the claim. The court might then order the defender to pay the sum of money claimed, or deliver the article or implement the obligation.

In an action for delivery or implementation of an obligation, the court may order the defender to deliver the article or carry out the duty within a specified period. If the defender does not comply with the court’s order, the pursuer will be entitled to come back to court and ask for an order for payment of the alternative sum claimed.

 

2. Decree of absolvitor in favour of the defender

 

If decree of absolvitor is granted, this means the pursuer’s claim has been rejected by the court. The pursuer cannot raise the same claim against the defender another time.

 

3. Dismissal of the claim

 

A decree of dismissal is also a decree in favour of the defender, but the pursuer would be entitled to raise the same claim again if he or she chose to do so. Decree of dismissal might be granted where, for example, the pursuer abandoned the claim.

 

Begs the question then when does your Sheriff use option 2 and why did he use option 3 previously and not 2 ?

 

Very different to English Law

 

Andy

[erinbrooke]

Well documented Andy.

 

To be honest judging by his mood yesterday I thought it better not to question him 'ever'...

 

It was quite enough when I asked him what he would do if they didn't come up with the DN and full statement. I got the feeling my reliance on RJ had rattled him somewhat...

 

And I did mention that not only had they not had the documents in order the first time round that in fact they also did not have them in order this time round. So i'm not expecting a Decree of Absolvitor if they fail again....

 

Also, on a separate note - can N0lans claim for costs in a SP Claim?

[AndyOrch]

https://www.morton-fraser.com/knowledge-hub/simple-procedure-expenses

[erinbrooke]

That clears that up then

 

Also, in Scotland, say this went the whole way and I lost - would that result in a CCJ against me?

[dx100uk]

I don't think ive ever seen this sheriff issue a Decree of Absolvitor

he doesn't operate that way.

 

typically makes the sols tell their client in no uncertain terms [as you witnessed with the RJ] to drop the claim and never comeback

that results in nolans writing with some excuse why they are doing

 

that's the way 4 cases have ended

 

that sheriff doesnt like people [esp LiPs] trying it on and using stuff they don't really know applies or not.

he'd rather they let him hang the claimant.

 

but he wont hold that against you.

 

the first part of your org def referencing the SPC rules and how he and the claimants sols etc must help a LiT was mainly his idea...

[dx100uk]

 

in Scotland, say this went the whole way and I lost - would that result in a CCJ against me?

 

no a decree you are in scotland

[erinbrooke]

Is that the same thing? in relation to Credit Files, etc.

 

Also, whats a LiT?

[dx100uk]

yes

Litigant In Person.

[dx100uk]

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.

[erinbrooke]

OK, so this Tuesday (day after tomorrow) sees me back in front of the Sheriff for the next CMD.

 

The last time I was advised to come back with a defence.

 

He also ordered the Claimant to supply him and myself with full detailed statements from day one and the DN within 3 weeks. That was 4 weeks ago and I haven't received anything....

 

Any thoughts?

[dx100uk]

you should have phoned the Sherriff's clerk the day the 3 weeks expired!!

going by his usual MO he might well dismiss or pause the claim without you needing to attend.

 

as for the new defence you need

 

pers i'd rely upon the 1st one you did with slight adj, bearing in mind this is a 2nd claim and still has missing docs

[erinbrooke]

Can he still dismiss/pause before Tuesday? It's just so close.

 

Should I drop the courts an email before Tuesday highlighting the claimants have not supplied the docs? Or will I just rub the Sheriff up the wrong way if I do....

[dx100uk]

phone them 1st thing tomorrow

tell them you've received no docs as ordered by the sheriff

[erinbrooke]

SECOND CLAIM DISMISSED.

 

The Sheriff seemed far from impressed that N0lans had implied that his 21 days was not adequate to get the requested information and as such dismissed the claim.

 

However, did make it clear to me that they could still yet return with a third claim.......

[AndyOrch]

Well done erinbrooke

 

It will get to a stage when Cabot decide that they have thrown enough money at this and not getting their result.

 

Thread title updated

 

Andy

[dx100uk]

Case was dismissed with costs too

Nice work cag

 

Please consider a donatuon

 

Dx

Title updated

[erinbrooke]

No, the Sheriff didn't award any costs at all. He did ask me if I had incurred any but didn't think a CAG donation would cut any mustard with him so i'll happily suffer that myself.!

[erinbrooke]

Their representative suggested that they needed 30 - 60 days to acquire the relevant documentation Andy, I have a feeling that's when the sheriff lost interest.

 

We've now had 2 bailiff letters delivered to the door and they've had to pay a local 'very qualified and respected' solicitor twice to appear for them. Surely when their costs are capped in the event of success they must now have to take a holistic approach to the matter??