Erudio/Shoosmiths Ordinary Cause - old student loan

[Hhog909]

Hello, I received an inital writ served by Edinburgh Sheriff Court on behalf of Erudio.

This relates to old-stlye student loans taken between approx 1997 and 2003. 

 

I'm not sure what to do, if there is any point in lodging an intention to defend or if I should apply for time to pay.

Any advice at all would be much appreciated.

Thanks in advance.

 

This is obviously my own fault as I missed the deferment deadline for the loans last year

(this last year has been a difficult time for me for personal reasons and I let a lot of things slide unfortunately).

 

I was a bit surprised to receive this writ as I spoke to Shoosmiths last week and they agreed to raise a complaint on my behalf with Erudio.

Erudio have confirmed they're investigating the complaint.

Shoosmiths said that they would stop any action on my account at that point while the complaint was investigated.

My income has never been above the threshold usually required for repayment of these student loans.

 

After Erudio wrote to me in January saying that they had terminated my loan agreement,

I sent them evidence of this and explained my reasons for missing the deferment deadline,

but they wouldn't consider reversing the termination without further evidence about my personal (not financial) circumstances which I couldn't supply at the time.

 

At the beginning of February I sent one of the old deferment forms to SLC with evidence of my income;

they wrote back saying they would assess my deferment claim,

but I found out last week that they didn't process it after all because my loans are handled by Erudio.

 

Details of the writ are as follows:

 

name the issuing court: Edinburgh Sheriff Court

 

Who Is The Claimant: Erudio Student Loans Limited

 

Who Are the Solicitors: Shoosmiths

 

What type of action? (Simple/Ordinary):

I gather this is an ordinary action as the amount is over £5k.

I'm a bit confused about this because the cover letter states 'If the words "commercial action" appear at the head of this initial writ then you should note that this action is a commercial action governed by Chapter 40 of the Ordinary Cause Rules 1993...'

but as far as I can see the writ isn't headed with the words "commercial action"

 

What is the claim for –

[Condescendence]

1. The parties are as designated in the instance. The defender resides at [address]. The defender has been so resident for more than three months immediately preceding the raising of this action. The defender is domiciled there. The Court accordingly has jurisdiction. There are no proceedings pending before any other Court involving the present cause of action and between the parties hereto. No agreement exists prorogating jurisdiction to another Court

 

2, The pursuers are a finance company which inter alia operates the business of debt purchasing. By virtue of a debt purchase agreement ['the Agreement'] the pursuers acquired the right to payment in respect of all debts and other monetary claims of any nature due or owing by the defender which were in existence as at the date the said Agreement was entered into and arose by virtue of the defender's contract with Student Loan Company as hereinafter condescended upon. A copy of the Agreement will be produced in any defended process to follow hereon.

 

3. The said contract between Student Loans Company and the defender is a credit agreement in terms of the Consumer Credit Act 1974 ('the Contract'). The total debit balance which has accrued under and in terms of the Contract amounts to [£amount] conform to copy statement of account which will be produced in any defended process to follow hereon. In terms of the Agreement the right to payment of the sums due in terms of the said statement of account was assigned to the pursuers. Said sum constitutes the sum sued for. The said assignation was intimated to the defender by way of a written notice.

 

4. The defender has failed to make payment of the sums due in terms of the said statement of account. He refuses to or at least delays in doing so. This action is accordingly necessary.

 

[Pleas in law]

1. The pursuers having acquired the right to payment of the sums due by the defender under and in terms of the Contract as hereinbefore condescended upon, the pursuers are entitled to payment of the sums due in sums thereof.

2. The sum sued for representing the debit balance due under the Contract, decree for the amount should be pronounced as craved.

 

The court stamp date is 19 July. The covering form (form 05) says that I have 21 days from 17 July to apply for a time to pay direction or a time order, or to defend the action.

[dx100uk]

I did look at this but got distracted.

 

how many loans did you have please?

 

dx

 

[Hhog909]

hi dx100uk thanks very much for your reply. I had 4 loans

[dx100uk]

and have they lumped the total outstanding on all of those under one agreement number for this claim?

 

 

[Hhog909]

Yes they have

[dx100uk]

oh dear.

that's not good for them

as if you look [most people still can get access to the online SLC portal]

that's not the total for that agreement 

 

have you read all the erudio SLC claimform threads in financial legal forums?

 

[dx100uk]

 

[Hhog909]

thanks dx100uk, will read through those tomorrow 

 

Hi dx, apologies

- I think that I was mistaken about the issue of the single agreement number...

when I answered your question previously I'd checked the last letter I received from Shoosmiths, which does indeed have a single 'Credit Agreement Number' as a reference... but now looking at older letters I see that this is the 'Customer Reference Number' used by Erudio in their correspondence.

 

So I don't think it has any link to the original SLC credit agreements

- it certainly doesn't look like any of the 'Loan Account Numbers' used by SLC.

 

I logged into the Student Loans portal at gov.uk, but there's not much to see there

- just a list of correspondence they sent me (deferral packs etc) up to 2013.

 

I'm still looking through relevant threads like you suggested, although there are a lot of them .

Do you think I could defend the claim in a similar fashion to the member in the thread posted below?

 

If I understand it correctly (I'm far from being a lawyer so may be wrong) the defence is disputing that Erudio has the right to 'terminate' the original agreement? Thanks again, will keep reading the threads.

 

defence in post 15

 

[dx100uk]

they cant issue a claim using their ref number either.

as you've seen on those other threads.

cause they wont hold any signed paperwork.

 

so to be clear there are NO SLC agreement numbers in the text of the claim?

 

it would beneficial if you read and responded here to anything not already responded to or requested  in post 7 link.

 

ordinary action claims are not a walk in the park if you don't understand what you must do with the paperwork

defending against erudio will be the easy bit believe me!!

 

 

[Hhog909]

Thanks dx. No, there's no reference number in the writ itself. 

 

Who are the pursuers:

 

Erudio Student Loans Limited, a company incorporated under the Companies Acts and having its registered office at c/o Wilmington Trust SP Services (London) Limited. Third Floor. 1 King's Arms Yard, London EC2R 7AF

 

Who Are the Solicitors:

 

Shoosmiths LLP

 

What is the writ for –

 

Preceding the Condescendence and Pleas In Law sections provided in post 1, there's the following text: The pursuers crave the Court to grant decree against the defender for payment to the pursuers of the sum of AMOUNT together with expenses

 

what date was this served on you:- 17th July

 

what date is within the COURT STAMP: 19th JUNE (not July as entered in post 1)

 

What Is the claim for: Student Loan

 

Is the debt showing on your credit reference files - I don't know but can find out

 

When did you enter into the original agreement before or after 2007? -  Before 2007;  first loan has a 1998 account number

 

Were you aware the account had been sold/assigned – did you receive a Notice of Assignment? Yes I believe so

 

Did you receive a Default Notice from the original creditor? Not to my knowledge

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Yes

 

When was your last payment:-  I believe I made at least one payment in late 2015 after having been late in submitting deferment forms that year

 

Why did you cease payments:- I only made payments to cover a couple of months' payments which were due because of my deferment had been submitted late. I stopped once those payments had been covered

 

Was there a dispute with the original creditor that remains unresolved?  No

 

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

 

 

 

I've requested a credit report from Experian now, I should receive it by next week

[Hhog909]

Didn't receive my credit report from Experian, so got a statutory credit report from Equifax instead. There's no reference to the student loans on there

[dx100uk]

due with the court and shoos by the 6th.

so start to understand HOW to fill out the form the correct way

and what to put where

if you look here

there are a couple of example replies 

 

I would be adding that you have NEVER held a SLC loan with the quoted number and that the claimant has to date failed your CCA request

 

pop yours up here over the next couple of days and we'll work on it.

[Hhog909]

Thanks for your reply dx, and thanks for being on top of the deadlines!

 

Re the process that needs to be followed here, as I understand it I need to return Form O7 by the 6th (and copy it to Shoos). This form is a notice of intention to defend. I believe I then have a further 14 days to lodge my defence. Just going by the rules stated here:

 

http://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/rules-of-court/sheriff-court/ordinary-cause-rules/chapter-9---standard-procedure-in-defended-causes-(2).doc?sfvrsn=8

 

Form O7 references Rule 9.1 (1)  - 

Subject to rules 33.34 (notice of intention to defend and defences in family action), 33A.34 (notice of intention to defend and defences in civil partnership action) and 35.8 (lodging of notice of appearance in action of multiplepoinding), where the defender intends to-

(a) challenge the jurisdiction of the court,

(b) state a defence, or

(c) make a counterclaim,

he shall, before the expiry of the period of notice, lodge with the sheriff clerk a notice of intention to defend in Form O7 and, at the same time, send a copy to the pursuer.

Further on in that same document is Defences Rule 9.6, which includes - 

(1) Where a notice of intention to defend has been lodged, the defender shall (subject to paragraph (3)) lodge defences within 14 days after the expiry of the period of notice. 

(2) Subject to rule 19.1(3) (form of defences where counterclaim included), defences shall be in the form of answers in numbered paragraphs corresponding to the articles of the condescendence and shall have appended a note of the pleas-in-law of the defender.

 

 

I see that the second part corresponds to your notes elsewhere about the format the defence should take.

Between those two rules there's an explanation of how the sheriff will schedule an Options Hearing once form O7 has been submitted.

 

Do you know if it's likely/unlikely that such a hearing will actually take place if I do defend the action?

 

I guess it would be a good idea to submit the defences at the same time as Form O7 if that's going to make it less likely that the hearing will take place?

Re the defence itself, there's no loan number quoted on the actual writ I received, it just states that Erudio purchased the debts accrued "by virtue of [my] contract with SLC".

 

The "termination letter" Erudio sent me back in January did contain all my loan account numbers.

Does this affect your view on the potential 'agreement number' defence?

 

I haven't submitted a CCA request to Erudio (sorry if I missed that this was something I should do in my reading of the other threads), if I submit one tomorrow can I still use the fact they haven't responded to it in my defence?

Sorry about all the questions, thanks again for your help, I really am grateful

[dx100uk]

no those rules are not for civil consumer credit causes.

 

you file your defence on the form as per the guide here.

 

but first:

 

under defender on the writ have they written a figure or just AMount? 

 

can we clarify there is NO account or agreement number mentioned anywhere on the writ?

 

 

 

 

[Hhog909]

Under defender they have written a figure - I left it out and replaced it with 'amount' in my post - apologies for the confusion. There is no agreement number on the writ

[dx100uk]

is that figure the full amount over all your slc loans?

 

dx

 

[Hhog909]

Hi dx, yes the figure is the combined amount for all loans.

[dx100uk]

opps

 

like to see them produce the agreement for that then..

I can see this being left to die.

 

more later

[Hhog909]

I sent off my CCA request to Erudio yesterday. I used their 16 digit reference number as the reference on the letter rather than the Student Loan numbers (hope this was the right thing to do). Here's my first attempt at my defences, which need to be lodged by Tuesday. Any and all feedback gratefully received, thanks in advance.

 

I've copied in the condescendence from the initial writ, and added my replies in red. I wasn't sure if I was supposed to address every single point made in the writ, in this initial attempt I've kept my answers short. The Pleas in Law are copied straight from dx's example.

 

1. The parties are as designated in the instance. The defender resides at [address]. The defender has been so resident for more than three months immediately preceding the raising of this action. The defender is domiciled there. The Court accordingly has jurisdiction. There are no proceedings pending before any other Court involving the present cause of action and between the parties hereto. No agreement exists prorogating jurisdiction to another Court

 

1. Admitted.

 

 

2, The pursuers are a finance company which inter alia operates the business of debt purchasing. By virtue of a debt purchase agreement ['the Agreement'] the pursuers acquired the right to payment in respect of all debts and other monetary claims of any nature due or owing by the defender which were in existence as at the date the said Agreement was entered into and arose by virtue of the defender's contract with Student Loans Company as hereinafter condescended upon. A copy of the Agreement will be produced in any defended process to follow hereon.

 

2. Not known and not admitted that the said agreement between Student Loans Company and the pursuers exists.

 

3. The said contract between Student Loans Company and the defender is a credit agreement in terms of the Consumer Credit Act 1974 ('the Contract'). The total debit balance which has accrued under and in terms of the Contract amounts to [£amount] conform to copy statement of account which will be produced in any defended process to follow hereon. In terms of the Agreement the right to payment of the sums due in terms of the said statement of account was assigned to the pursuers. Said sum constitutes the sum sued for. The said assignation was intimated to the defender by way of a written notice.

 

3. Not known and not admitted that the said contract between Student Loans Company and the defender exists. The defender made a request to the pursuers under s77 of the Consumer Credit Act 1974 to which no response has been received.

Copy of letter attached as PROD01.

 

 

4. The defender has failed to make payment of the sums due in terms of the said statement of account. He refuses to or at least delays in doing so. This action is accordingly necessary.

 

4. Not known and not admitted that said sums are due. Not admitted that this action is necessary as the pursuer has to date failed to prove that said sums are due.

 

PLEAS IN LAW

 

 

The Defender craves that the court uses its powers under the Consumer Credit Act 1974 and declare the documentation supplied by the Pursuers as unenforceable.

 

Accordingly, given the Pursuer’s averments are irrelevant et separatism lacking in specification, the action should be dismissed. The Defender denies the sums being claimed as due and the resting owing decree should not be granted as craved

 

Form O7

 

Form07.pdf

 

For the sake of completeness, Form O5 and the writ itself...

 

writ-compressed.pdf

[Hhog909]

Here are my defences, hopefully in the correct format for handing in to the court. So as I understand it I need to hand this in along with Form O7 and a copy of my CCA letter (marked 'PROD01').

 

Probably a dumb question but, in the guidance thread kindly linked above, there is the statement 'you should mark ‘INTIMATED’ on the backing of the defences' - does this mean that I have to write the word 'INTIMATED' on the back of each sheet of paper I submit? Thanks in advance!

 

Court Ref No. XXX-XXXX-XX 
DEFENCES 
in causa 
Erudio Student Loans Limited, a company incorporated 
under the Companies Act and having its registered office at 
c/o Wilmington Trust SP Services (London) Limited, Third 
Floor, 1 King’s Arms Yard, London EC2 7AF 
PURSUERS 
against 
[Me] 
[My Address] 
DEFENDER 
The pursuers crave the Court to grant decree against the defender for payment to the pursuers 
of the sum of [SUM] [£SUM] together with expenses. 
CONDESCENDENCE 
1. Admitted. 
2. Not known and not admitted that the said agreement between Student Loans Company 
and the Pursuers exists. 
3. Not known and not admitted that the said contract between Student Loans Company 
and the Defender exists. The Defender made a request to the Pursuers under s77 of the 
Consumer Credit Act 1974 to which no response has been received. Copy of letter 
attached as PROD01. 

4. Not known and not admitted that said sums are due. Not admitted that this action is 
necessary as the Pursuer has to date failed to prove that said sums are due. 

PLEAS IN LAW 
1. The Defender craves that the court uses its powers under the Consumer Credit Act 1974 
and declare the documentation supplied by the Pursuers as unenforceable. 

2. Accordingly, given the Pursuers’ averments are irrelevant et separatism lacking in 
specification, the action should be dismissed. The Defender denies the sums being 
claimed as due and the resting owing decree should not be granted as craved. 

 

Also... (possibly another dumb question!) am I supposed to sign and date the defences? Thanks again!

[dx100uk]

Court Ref No. XXX-XXXX-XX 
DEFENCES 
in causa 
Erudio Student Loans Limited, a company incorporated 
under the Companies Act and having its registered office at 
c/o Wilmington Trust SP Services (London) Limited, Third 
Floor, 1 King’s Arms Yard, London EC2 7AF 
PURSUERS 
against 
[Me] 
[My Address] 
DEFENDER 
The pursuers crave the Court to grant decree against the defender for payment to the pursuers 
of the sum of [SUM] [£SUM] together with expenses. 
.
CONDESCENDENCE 
.
1. Admitted. 
.
2. Not known and not admitted that any agreement for the sum claimed ever existed between the defendant and the Student Loans Company subsequentually sold to the Pursuers. 
.
3. Not known and not admitted that the said agreement between Student Loans Company and the Defender exists. The Defender made a request to the Pursuers under s77 of the Consumer Credit Act 1974 to clarify the matter, to which no response has to date been received. Copy of letter ...attached as PROD01. 

4. Not known and not admitted that the defender owes said sum. The Defender has in the past had dealings with the student Loan company but has never exceeded the published threshold required to ever begin repayment nor has ever received such notification.

 

PLEAS IN LAW 
1. The Defender craves that the court uses its powers under the Consumer Credit Act 1974 and the Student Loan regulations to declare the claim null and void.

 

2. Accordingly, given the Pursuers’ averments are irrelevant and lacking in 
specification, the action should be dismissed. The Defender denies the sums being 
claimed as due and the resting owing decree should not be granted as craved. 

 

musings as to date...……...

[Hhog909]

thanks very much for your reply dx. I've had another bash at the defences, incorporating your feedback. Here's the latest version:

 

1. Admitted.

2. Not known and not admitted that the said agreement for the sum claimed between Student Loans Company and the Pursuers exists.

 

3. Not known and not admitted that the said contract between Student Loans Company and the defender for the sum claimed exists. The defender made a request to the Pursuers under s77 of the Consumer Credit Act 1974 to clarify the matter, to which no response has to date been received.

Copy of letter attached as PROD01.

4. Not known and not admitted that the Defender owes said sum. The Defender has in the past had dealings with the Student Loans Company but his income has never exceeded the published threshold required to begin repayment of his student loans, nor has he ever received any notification to the contrary.

 

Pleas In Law

 

1. The Defender craves that the court uses its powers under the Consumer Credit Act 1974 and the Student Loan regulations to declare the claim null and void.

2. Accordingly, given the Pursuers’ averments are irrelevant and lacking in specification, the action should be dismissed. The Defender denies the sums being claimed as due and the resting owing decree should not be granted as craved.

 

Must admit I'm starting to worry whether I'm doing the right thing now that the deadline for responding to the writ is approaching (it's tomorrow).

 

What if Erudio produce evidence of their agreement with SLC, and the total debit balance of all loans, according to that agreement, is as stated in the writ?

 

What if they can produce the original credit agreements?

Will I be in a worse place than if I'd decided to apply for time to pay?

 

Sorry if I'm being a little negative, just nervous

 

 Thanks again.

[dx100uk]

dont write as a third part, ...put it back to what I have [updated] on my ideas

 

you are missing the point.

there is no signed agreement by you for the claimed figure.

and they cant produce one

producing all the loans is of no real relevance.

 

as for the notice of assignment of your loans account from SLC to erudio, thats irrelevant as such because assignation under Scottish law doesn't exist, it's given that it happened. and anyway you are not disputing you have had dealing with SLC.

 

your over-riding principle here is one of  'do you owe them the claimed money' 

no you don't-  when all is said and done because you don't and have never earned over the threshold.

 

as with all erudio claims here or in E&W I suspect this will be allowed to die.

you only 'complication' is because the sum claimed exceeds £5k its had to go down the Ordinary cause route, which is somewhat finicky in Scottish law, 

 

don't forget to sign and date

turn over the last page and write the intimation on the back.

 

are you going in person to the clerks office?

 

[Hhog909]

Thanks for your reply dx, I've really been stressing about this. I guess when all's said and done I have nothing to lose other than the potential extra legal costs - if I admit the debt or lose the case, either way it's a court decree against me... so might as well have a go. And your confidence in the defence is certainly reassuring!

 

So I should change 2 back to :

2. Not known and not admitted that any agreement for the sum claimed ever existed between Student Loans Company subsequentually sold to the Pursuers.

But everything else is fine? I need to sign and date the defences and write the intimation on the back.

 

Yes, I'll be going in person to the clerk's office. Would it be acceptable to post the defences to Shoos tomorrow do you think? If not I can deliver in person I guess (they're not that far from the court).

[dx100uk]

 

but his income

 

no its not fine

you've written it as a third person

use post 24 now

 

as for intimation to shooes

you only have to put you've done it not how

post is ok

 

Edinburgh clerks are usually well ok

get them to check it over for you.