Cabot/Nolans SPC Claim - Newday Marbles Card

[StandFirm11]

No update, seems all non urgent cases adjourned here in Scotland.

I returned the response form on time and also issued a copy to Nolans.

Nolans office is also closed.

 

What's your thoughts about this whole situation?

Do you think it will just be a return to business as usual and they work through the backlog of cases at the court?

[dx100uk]

so you follow post 4 in that thread?

 

dx

 

[StandFirm11]

Yes, copied it over for the CCA responses and filled in the blanks. Sent to court and a copy to Nolans too.

[StandFirm11]

Still no update, but I know now that Nolans are up and running and open again.

 

I'm a bit concerned at this new process of remote hearings which seems to be being rolled out.

Will this be a disadvantage to the average consumer?

 

Looking through previous cases, it appears most of the success comes from defending and having these dodgy firms run up costs in attending hearings and ultimately just giving up as they end up spending more in costs than it's worth pursuing.

 

Based on what I'm seeing they can now attend the hearings from their windowless city basements at close to no cost to them I assume.

[dx100uk]

the clerk of the court will write.

 

till then watchout for willy waving emails from nolans. ...let us know of any.

that'll give you a good benchmark of their intentions..

 

i will suspect they will refer to your earlier phone call and resultant emails in/out as some form of admittance

but that doesn't detract from them having to comply fully with your form 07 response and CCA request of complete documentation disclosure.

 

here follows a hidden post which will contain the emails pdf you sent me which will only be visable to siteteam for their ref.

 

dx

 

 

 

 

..

[StandFirm11]

I checked for an update this morning and there's a case management discussion being arrange for around 4 weeks time.

 

This is going to take place over the phone and the sheriff has ordered the claimant produce:

 

The claimant is ordered to lodge the following documents 7 days prior to the case management discussion:

1. Original contract

2. Invoices of assignation

3. Statement of account

 

any advice?

[dx100uk]

be interesting to see if its a MBNA card or Aqua then

bet they'll not produce anything and the case will be dismissed.

 

go back and read that hamilton court PDF your attached earlier

that tells you everything you'll need to know.

 

it's only a CMC (Case Management Conference) anyway not a full hearing.

[StandFirm11]

Hey again,

the case management date is approaching soon.

 

There has been an update on the Scot Civil online portal which is Nolans confirming the name and details of the solicitor that will be attending the CM discussion.

 

They haven't lodged the documents ordered by the sheriff.

I assume they will do this at the last minute.

 

Just looking for some advice about what to expect here and what to say?

I have been reading through other cases and I think the best thing to do is let the sheriff lead and not to be too talkative?

 

Sorry first time for me so a little bit nervous, want to make sure I act appropriately.

[dx100uk]

what date id the hearing

and what date were they to disclose

shame they have you email.

 

pers i'd send nolans ONE email 

if you haven't already??

stating that your email address is NOT to be use for anything to do with case xxxxx and their addresses have now been blocked 

 

else noland WILL push fake copy and paste filing cabinet documents out claiming they are 'real'  1 min before a deadline so you can never have time to respond.

 

dx

 

[StandFirm11]

it's a case mangement discussion on 20/08. The sherrif order on the civil online portal says

 

The claimant is ordered to lodge the following documents 7 days prior to the case management discussion:

1. Original contract

2. Invoices of assignation

3. Statement of account

 

Does this mean they have to lodge it through the online portal? Or can they just dump them to my e-mail at the last minute?

 

I will send an e-mail to Nolans now confirming the e-mail address has not to be used.

 

Also this does not mention them having to provide the default notice, should I raise that at the discussion?

[dx100uk]

what does it say if the claimant fails please?

[StandFirm11]

It doesn't say, that's all it says in relation to the documentation. I have copied and pasted from the order.

 

It's possible they have submitted today and the portal will be updated tomorrow.

[dx100uk]

ring the clerks office tomorrow and say they have not filed and you want absolvitor issued at once.

[StandFirm11]

I have been trying to get through to someone but seems they are only accepting written correspondence just now due to limited staff and covid. I sent an e-mail through to them but nothing back yet.

 

They still haven't lodged any of the documents requested by the sherrif.

 

The CMD is tomorrow so I need to make sure I'm prepared because I've never done anything like this before.

 

How long do these things usually last?

 

I'm assuming I just stick to my defence, if questioned I should advise that I vaguely recall having dealings with NEW DAY in the past but can't recall any specific agreements which is why i've requested the documentation?

 

- Section 87 requirement for default notice

- Copy of original signed CCA

 

and don't let Nolans try to bypass the requirements to provide this?

 

What kind of tactics can I expect from Nolans here? Is there any advice you can give me?

[dx100uk]

you stick exactly to the wording in your defence.

but the 1st thing to bring up is nolans have failed to comply to the sheriffs orders regarding paperwork and like the sheriff, you have nothing from the claimant to even begin to be able to research the debt your way.

speak when spoken too only.

 

should be easily dismissed for that reason alone.

 

if it appears to be going you way, ask for the sheriff to issue an absolivor and get it killed dead forever.

 

 

 

 

[StandFirm11]

Hey Dx

 

Just had the discussion.

It only lasted a few minutes.

 

Nolans sent me an e-mail (copying in the court) 1 minute before the discussion (I laughed) with my e-mails of a settlement offer claiming that this is an admittance of the debt.

 

Nolans started the discussion by referring to this, I asked to comment and advised the offer as stated on the letter was without prejudice due to panic and stress of never having anything like this happen before and that I request to see the Notice of assignment, Default notice, original CCA and statement of accounts to ensure it is enforceable in court as I have no way of knowing what agreement they are referring to without seeing the requested paper work.

 

The Sherriff didn't ask any further questions of the offer but asked Nolans about the documents, their response was "delayed". I asked to comment again and referred to the sheriffs order requiring them to provide the documentation 7 days prior to the discussion. Nolans requested more time and the hearing is set for October. Sherriff mentioned they would issue and interlocutor.

 

Can they just rely heavily on my e-mails as an admission. I don't think it's unreasonable (I know now it's stupid) for someone who is naïve about the process to make a without prejudice offer initially regardless of liability to make it go away. I would think they still need to provide the documentation to show that they have a legal right to enforce the debt?

Any advice?

 

They have formally submitted my letter of offer as evidence of admittance.

It now appears on the civil online portal.

The letter states clearly in bold "without prejudice".

 

I've been reading a bit into this is what I am seeing "Without Prejudice (“WP”) communications made in a genuine attempt to settle a dispute may not be used in court as evidence of an admission."

 

Can I confidently assume I've covered myself here?

[StandFirm11]

Hey guys, so a continuation case management discussion is due early October.

 

Nolans have submitted a list of evidence form lodging the following documents:

-Agreement with electronic signature (tick box), date and computer IP address

-Statements of Account

-Intimation of Assignation

 

I haven't received the actual documents yet and I assume they will appear on the online portal within the next couple of days.

 

The fact they have submitted the list of evidence form to the court suggests to me they actually have the documentation and aren't bluffing.

 

Just wondering what advice you would give at this stage?

[dx100uk]

well the minute the 7 days is up if nolans haven't complied then you get on the phone to the clerk and tell them and get the claim dismissed.

 

if they do comply download everything and pop it all up here.

 

you did state to nolans not to use your email anymore before yes?

 

[StandFirm11]

Thanks DX

I have received the documentation.

 

They updated their 'List of evidence' submission to the CCA and statement of accounts.

 

The CCA is fully legible, has my full name and address and also tick box signature and date of signature IP Address. It's headed marbles paper and looks legit.

The statement of accounts is also full and complete.

 

However, there is nothing confirming the assignation from Marbles to Cabot.

 

what I have is the CCA, statement of accounts but nothing confirming Marbles have instructed cabot/nolans.

 

Is this enough to continue to defend?

[dx100uk]

you defend regardless

statements are immaterial and mean nothing.

 

scan up the rest to one multipage PDF

read upload carefully

 

 

 

[StandFirm11]

Thanks DX

Marbles-Cabot-Nolans.pdf

[dx100uk]

On 20/08/2020 at 11:19, StandFirm11 said:

I requested to see the

Notice of assignment,

Default notice,

original CCA and

statement of accounts

 

to ensure it is enforceable in court as I have no way of knowing what agreement they are referring to without seeing the requested paper work.

 

The Sherriff didn't ask any further questions of the offer but asked Nolans about the documents, their response was "delayed". I asked to comment again and referred to the sheriffs order requiring them to provide the documentation 7 days prior to the discussion. Nolans requested more time and the hearing is set for October. Sherriff mentioned they would issue an interlocutor.

 

 

they have failed to supply what the sheriff ordered

i would be ringing the clerks office tomorrow and tell them they have failed to comply to the direct orders of the sheriff and you wish the claim dismissed and an absolvitor issued 

[StandFirm11]

the court have a large backlog and are only dealing with urgent queries on the phone.

I was asked to e-mail in as per what you said.

 

I haven't had a response the CMD is tomorrow.

 

I plan to just stick to exactly what you said, their failure to comply with part of the Sherriffs order and that no default notice or NOA has been supplied after 2 requests from the sheriff now.

 

I had a look through previous cases to get an idea of what to expect again but I can't find any examples of situations where they have actually supplied the signed CCA. I'm just wondering what kind of questions to expect from the sheriff in relation to this and how to respond.

 

I expect something along the lines of "they have provided an agreement, signed with your name on it, do you acknowledge this debt now?

why do you need to see the DN or NOA?

is it really necessary?"

 

Any advise would be appreciated as always, thanks.

 

Sorry for the additional post, I couldn't edit.

 

In Nolan's letter uploaded in post #48,

is that sufficient NOA?

or does it have to be provided by the OC or Cabot?

[dx100uk]

lack of default notice is FATAL to any court claim 

 

from my notes

 

Default notices, litigation and section 127(3) of the Consumer Credit Act July 2010
.
 For a creditor to enforce a credit agreement against the debtor, 
he must serve the latter with a default notice, 
this notice must be served in accordance with section 88 of the Consumer Credit Act 1974 (CCA).
.
 Generally, the prescribed form of a default notice according section 88 is as follows:
.
 "The default notice must be in the prescribed form and specify
.
 (a) the nature of the alleged breach;
 (b) if the breach is capable of remedy, what action is required to remedy it 
      and the date before which that action is to be taken;
 (c) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, 
     and the date before which it is to be paid."
.
 Section 127(3) of the Consumer Credit Act 1974
.
 Should the debtor be sued for the outstanding amount, 
it may be open to the debtor to raise an argument that the agreement is unenforceable 
because it does not comply with the requirements of the Consumer Credit (Agreements) Regulations.
.
 Agreements executed before 6 April 2007 are subject to sections 127 (3) & (4) of the Consumer Credit Act 1974 ('CCA'). 
Agreements entered into after that date are not by operation of the repeal under the Consumer Credit Act 2006.
.
 The effect of sections 127 (3) & (4) truly displays the paternalistic nature of the CCA, in that where a breach of a prescribed term under regulation 6 and schedule 6 to the Consumer Credit (Agreements) Regulations 1983 is found, the agreement as a whole will be irredeemably unenforceable.
.
 In other words, the lender cannot enforce the agreement or realise any surety under that agreement; the debt in effect is written off.

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

 

as for NOA..

if it can't be proved under the law of properirs Act that Cabot own the debt 

they can't demand any money.

 

bit like your neighbour lending you a tenner, but he also owes his other neighbour a tenner so says well now go chase you for..

 

 

 

 

[StandFirm11]

Thanks Dx,

 

Just had the CMD, bit of a stange one.

I felt like it was going my way and then Sherriff seemed to turn and has set a hearing.

 

- Nolan's advised all documents provided.

- I replied that no NOA or default notice referring to section 88 of CCA etc and also questioned legal assignation.

 

-Sherriff asked Nolan's why these 2 docs have not been provided, Nolan's advised DN was "unnecessary" and referred to the letter they sent (post #47) as their intimation of assignation.

 

-Sherriff asked why DN is "unnecessary" and referred to what I said about section 88.

- Nolan's then said the claim is not in respect of default, the claims is for arrears and that the DN does not apply?

 

- Sherriff seemed confused and asked what Nolan's meant by this.

Nolan's just confirmed it is for arrears and it's different so DN doesn't apply.

 

- Sherriff asked for my comments on this, this is where I struggled.

I just referred to Section 88 and at this point I have received no proof of claimants legal right to debt.

 

- Sherriff then advised a hearing will be set, explained we need to submit drafts of evidence which we intend to rely on in court (It was a lot of Jargon, I will clarify once I receive the information from the court).

 

- What worries me is the Sherriff mentioned that I should be exchanging drafts with Nolan's prior to the hearing date etc etc.

 

Any thoughts?

 

Is their letter (Post #47) sufficient NOA?

 

When I receive information from the court, I will post here what is expected of me prior to the hearing.