Cabot/Nolans SPC Claim - Newday Marbles Card

[AndyOrch]

I thought it was a credit card claim ?

[StandFirm11]

It is, I know I messed up.

[StandFirm11]

What I should have done if I prepared correctly, was be able to explain to the Sheriff why repayable on demand applies to overdraft facililites and not credit card agreements. This was my first time at a hearing ever, I was nervous and getting questioned on one of the only things I hadn't prepared for.

 

At least I know now and this should be useful for anyone else, you have to prepare for everything coming up.

 

I feel if I explained that correctly, the Sheriff would have went back to the DN notice and dismissed the claim as the Sheriff had already concluded that a presribed DN noticed hadn't been issued. I'm honestly so annoyed at myself.

Edited November 17, 2020 by StandFirm11

[AndyOrch]

Sounds more like the judge messed up and followed the advocate...all you had to do was stick to section 87(1) and not get sidetracked.

 

87 Need for default notice.

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

(c)to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

[dx100uk]

And ofcourse its just like simon nolan to do these things when not once was 'repayable on demand' in any submission to date.

[StandFirm11]

Yeah I think the Sheriff wasn't 100% clued up on it, I relentlessy kept focusing on section 87 for the above reasons. It was going my way until they brought "repayable on demand on to the table". Like you say it had never been mentioned in any of their submissions or docs, so not something I was clued up on.

 

It was at this point the Sheriff dismissed the requirement for the DN. I tried to keep it on the table but the Sheriff made 2 points.

 

- They are not trying to enforce a security

- The agreement has not been terminated, but assigned to Cabot who are simply asking for repayment on demand.

 

I argued that Cabot are a debt "purchasing" company, surely for the debt to be purchased the original credit has terminated the agreement and therefore DN is required. Sheriff wasn't interested and explained that it's been assigned, not terminated.

 

Again, in hindsight, with knowledge of this area, I think I could have easily won this, but that's my fault and a lesson learned.

 

 

Edited November 17, 2020 by StandFirm11

[StandFirm11]

If they hadn't thrown "repayable on demand" on the table at the last second, I'm fairly certain the Sheriff was about to dismiss the case.

Edited November 17, 2020 by StandFirm11

[StandFirm11]

Also I thought I would add as well, another mistake I think I've made in this. The Sheriff did not grant decree as I explained it would impact my future job prospects. Instead the Sheriff has paused the case and issued a "finding" basically an order finding me liable for the full sum + £150 expenses.

 

I've now to come to an agreement with Nolans/cabot regarding repayment in affordable amounts.

 

My worry now is that Nolans and Cabot will start to fire on loads of interest, additional charges, costs etc.

 

Any advice you can offer here? I had to contact nolans today and they sent me an I&E but eerily at the bottom of the e-mail it said "we would encourage you to seek your own independent legal advice now"

 

[dx100uk]

no they can't add anything!!

 

if the case is paused there is nothing stopping you issuing an incidental application and reopening the case.

 

did he state the court would be writing to you with an explanation?

 

dx

 

 

 

[StandFirm11]

No, but issued an order I'll paste here:

"The Sheriff, having considered the written submissions and thereafter having heard from both parties,
finds the respondent liable to the claimant in the sum of £1261.96 together with the expenses of the claim in the sum of £150 
and thereafter orders the progress of this case to be paused to allow parties to enter into repayment negotiations.
This means that all upcoming hearings in this case have been cancelled.

No procedural steps may be taken in this case until the case has been restarted.

Either party can ask for this to happen by sending an Application to Restart Form to the court and to the other party.

Both parties should be aware that after three months, the sheriff clerk may write to you directing that a particular step should
be taken. If this is not done, the claim may be dismissed."

[dx100uk]

right i wish you'd posted that rather than saying you'd lost.

 

you haven't lost

and the sheriffs orders were simply to enter into repayment negotiations, not PAY THEM.

 

if the claim is dismissed it's to your advantage.