Intrum (1st Credt)/DWF SPC OD Court Claim - Old HBOS OD - Calling OC to Court?

[AndyOrch]

Order dated 17th Feb....21 days is today...but when did you receive the order ?

 

Andy

[salkirwi]

Hi Andy

I received the the order on the 19th February . . but I thought the count would start from the date of the order which is the 17th Feb.

If I could send it tomorrow, 11th Mar then I should be within the stipulated dates !!

 

Thanks for your help

Edited March 10, 2021 by salkirwi

[AndyOrch]

Sure....Ill take a look tomorrow....then you can finalise it.

[AndyOrch]

On 06/03/2021 at 22:37, salkirwi said:

Good evening DX100

 

Here is a draft of my response to the court order.  I would be obliged if you could review it and avise me if I am on the right track.

 

Defendant Statement of Position in Response to the Order of the Sheriff

 

1. The defendant suffered Severe Depression illness almost 12 months prior to the closer of the Bank account.
2. HBOS was made aware of the defendant illness.  A Medical Certificate dated 15 Sept 2017 was handed over to the bank as a proof. (A copy of the report will be submitted exclusively to the court review)
3. The defendant, with the support of her ex-partner, sought a resolution from the OC regarding the escalation of her OD account, which it was mostly formed of extortionate bank charges/penalties being applied to the account.
4. HBOS agreed to reduce the outstand OD sum to £XXX and closed the account.
5. The defendant is confident that her ex-partner has settled the agreed sum with OC, but not absolutely certain, considering her health state at that time.
6. She has been actively trying to reach for her ex-partner for documented evidence, but the fact that, we believe, he is a currently deployed by the UK military forces abroad and communication has been, to put it politely, very difficult due to the nature of his deployment.
7. As the court is aware, the defendant has been trying to retrieve the data of her dealing with/from OC which it should reflect history of the above.  The defendant has already written twice to HBOS, as well as visiting her bank branch, on 01 March 2021, in person demanding the requested data.  HBOS promised to send the data to her as soon as they can.
8. In addition to the above reasoning and contend, the defendant refute the claimants claim is owed or payable.  Due to punitive and extortionate fees the facility became untenable. Any alleged balance  claimed will consist totally of default penalties, punitive charges levied on the account for alleged late, rejected or over limit payments. The court will be aware that these charge types 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 and any alleged balance was due to punitive and extortionate charges .
9. It is expected that the Claimant prove the allegation that the money is owed. Therefore the Claimant is put to strict proof to:-

              a.    Provide a copy agreement/facility arrangement along with the Terms and Conditions at inception, which this claim is based on.

              b.    Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

              c.    Provide a breakdown of their excessive charging/fees levied to the account and justify how the Claimant has reached the amount claimed.

              d.    Show how the Claimant has the legal right, either under statute or equity to issue a claim.

              e.    Evidence how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.  

 

10.   By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Looking through your topic now......rather confusing......is this a loan or an overdraft facility ?

 

Andy

[salkirwi]

Hi Andy,

It is an Overfraft facility

[dx100uk]

details of poc coming up.....5 mins

 

[dx100uk]

its an OD.

 

(POC)

 

 

On or around 9 January 2012, the respondent entered In a regulated finance agreement with Bank of Scotland plc ("the original Creditor·), agreement number xxxxxxxxx in respect of an Overdraft account (the Finance Agreement").

The respondent fell into arrears under the Finance Agreement, Default Notice was issued by the Original Creditor to the respondent. The respondent failed to pay the arrears owed to the Original Creditor under the Finance Agreement in accordance with the Default Notice.

 

On or around 25 August 2017 the respondent was deemed by the Original Creditor to be in default of the Finance Agreement. The Finance
Agreement was subsequently terminated by the Original Creditor. At the date of termination a sum of £1 ,332.82 remained due and outstanding by the respondent to the Original Creditor.

 

On or around 5 December 2018 ("the Purchase date"), the claimant acquired all title, Interest, rights, benefits and remedies that the Original Creditor had against the respondent under and in terms of the Finance Agreement ("the Assignation ). At the Purchase Date, a sum of £1,332.82 remained due and outstanding by the respondent in terms of the Finance Agreement ("the Purchased Amount~).

 

On or around 9 October 2019 the claimant wrote to the respondent to Inform them of the Assignation and to demand payment of the Purchased Amount.

 

A total sum of £1 ,332.82 currently remains due and outstanding by the respondent to the claimant ln terms of the Finance Agreement and is undisputed

 

The debt was acknowledged by the respondent within a period of 5 years prior to the commencement of  thls court action.

[AndyOrch]

I will provide you with an amended  Statement of Position  in the morning......please do not submit the  above.

 

Andy

[AndyOrch]

Statement of Position..pdf

 

 

 

[dx100uk]

thanks andy.

 

salkirwi file that today by email to the sheriff clerks office, dont change anything.

 

also... don't forget

 

Both parties are ordered to attend a case management discussion by telephone
conference call at Glasgow Sheriff Court on 13 April 2021 at 10:00.
The sheriff orders both parties to provide the court, no later than 5 working days
prior to said hearing, a note setting out:
a. the name of the individual representing the party or in the case of a party
litigant. confirmation that the party is self-represented;
b. the representative's direct telephone number; and
c. the representatives direct e-mail address.
Please send these contact details to glasgowsimpleactions@scotcourts.gov.uk.

 

 

 

[salkirwi]

Andy and DX

 

Thank you very much for your help and support.

 

One  last question, when do I send the copy of the document to the Claimer ?  I mean shall I delay it or send it now?

 

Regards

 

Edited March 12, 2021 by salkirwi

[dx100uk]

have you got to send it to the claimant:

check what the sheriff ordered you to do..

 

dx

 

[salkirwi]

The Sheriff, at the first CMD told me that whatever I send the court I must send it to the Claimant too.

 

So I assume I need to do that for this one too !?

[dx100uk]

it can't hurt you to do so no.

but what the sheriff was referring too was probably your original form 4a response , which you probably didn't sent to the claimants solicitors as well as the court.

 

 

[AndyOrch]

I would also send a copy to the claimant....but get the courts away as a priority now.

[salkirwi]

The court copy is away  . . . I shall do the Claimant copy next week.

 

Thank you both for your car.

 

I shall keep you posted on my steps and on the outcome 

 

Cheers

[salkirwi]

Hi everyone  . . .  Just an update

 

The CMD was this morning.  It started with cheap  manoeuvrability  by Intrum’s lawyer, but let me give you quick summery background:

 

The judge issued an order to us to submit evidence supporting our case such as call for witnesses or ask the court to order the original creditor to some action.  We were giving 21 days for the submission.  In my simple calculation without, allowing time to post, the final date was to be 10 March 2021, with post time 2 days later.

 

On the 10^th March, and to be on the safe side, I send to the court the response version giving to me by DX100UK.   Then on 12^th March, I send to the court the version giving to me by Andy, asking the court to replace the first document with the second  one.

 

On 7^th of April I send Intrum lawyer the document 2 as it is our official response.

 

ON the 12^th April I send the court the medical certificate for my niece asking to be viewed exclusively by the court.

 

At the start of the CMD the Judge ask Intrum lawyer to start.  So he started by claiming the following:

1.    We failed to meet the 21 days deadline set by the court.

2.    He received a response on the 7th April which is only a week ago.

3.    He admitted that he has the two version of our submission. He claimed that they were collected by colleague of his from the court’s Clark while he was in court.

4.    He said that this case has taken too long and the defendant just messing them about and keeping changing their plea.

 

At that time the judge announced that he does not have the two documents in the case file. He only has the medical certificate.  Then he turned to me to ask me for explanation.

a)    I said that we met the deadline set by the court and submitted the required response.  Also I explained the issue with two documents.

b)    I confirmed that we have received a confirmation form the court on their receipt of  my submission emails.

c)    I stated that Intrum lawyer’s claim is incorrect that we failed to meet the deadline, and pointed out that he has our two documents in his possession which he obtained from the court.

 

Then the judge started asking Intrum lawyer on the content of the two documents, which is bizarre not to ask the author of the documents.

 

Intrum Lawyer stated that the two documents almost identical. He then started pointing out the negative sides in the documents such as our change of the 50% settlement.  He continued claiming that we are changing our defence without following the certain set procedure, which it seemed to confuse the judge. The lawyer  continued to ridicule the document in general without being specific.  At the end the judge turned to me  to response.

 

I said that the court must see the document as it is important to the case.  It is not correct to ask the lawyer to a brief the court on our document as he has been selective in what to read.  The judge came in and said that he asked the lawyer for a general summery of its content.

 

I continued that the full claim case is fundamentally flawed, and I continued to list why:

1.    The nature of the relation between the original creditor and defendant does not constitute the need for Financial Agreement between the two parties.  The claimant stated in their case that the defendant was in breach of a Financial Agreement. Where is this agreement?

2.    There is no Default Notice that the claimant stated in their submission there was a Default  Notice.

3.    Also has the original creditor served a notice of assignment on the defendant?

4.    The other fundamental issue is the question of the nature of the sum claimed!. .  .  .  . . .

 

At that time the judge stopped me asked me if I was asking for the other side to present these documents.

 

I responded:  Intrum are experienced organisation in this type of business.  They know very well the importance of these documents to the case, why they have not been  incorporated them in their case submission , . .  my answer Yes  . . . our missing response document put the claimant to Strict Proof to present these documents to the court.

 

The lawyer then announced that the Default Note was included in their submission and, he continued to quote a reference number, then he retracted his claim, which is I had a sense that he felt he has gone too far in his BS***t.

 

However, the judge spend most of session faltering and does not know what to say.  At the end he decided to go for another CMD. But then the funny part he asked the Claimant lawyer to send him the two missing documents.

 

I feel more positive now on the case but I would appreciate your views and comments.

 

Thank you

[dx100uk]

urm i wish you'd either check your grammar before posting or try and explain things a little more clearly...

 

so the end result is the claimant still has to produce??? for the next cmd?

 

dx

[salkirwi]

Sorry  DX100UK . . . English is not my mother tongue   . . . I am doing the best I can manage with what I know 

[salkirwi]

Good evening Andy / DX100

 

The CMD for this case took place at the end of last week.  This is what happened in brief:

 

-       The Judge totally ignored all the sections in our submission related to putting the claimants to Strict Proof (items 6, 7 and 8 of Andy’s help letter).

 

-       The judge started the CMD asking Intrum’s lawyer to provide a figure to his expenses claimed and the lawyer indicated a sum in excess of £2000.

 

-       Then Judge started asking me to point out what do I consider to be excessive bank charges. I avoided to be dragged into such details and I demanded that the court should ask the defended to respond to items 6, 7 and 9 of our submitted document, since we put them to Strict Proof, but the judge was reluctant to do that.

 

-       I continued pressing on that pointing out to the Judge that we did receive huge pile of documents from HBOS in response to SAR. Among these I found a communication between Intrum and HBOS in early March 2021.  In the document, Intrum asked HBOS to provide them with copies of all documents that Andy and DX100 regularly point out their importance to claim cases, such as Financial Agreement and Default Notice . . etc.  HBOS admitted that they do not have them.  I offered to send to him a copy while we are the meeting

 

-       However, I continued pushing to get the judge to dismiss the case pointing out that whatever the claimant relayed on to build up his claim do not exist, but the Judge decided to fixed another CMD for 09 July 2021.

 

-       I am not sure what the Judge expect from me or Intrum to produce for the next CMD as we have not received any paper work from the court yet.  So just in case no directions come from the court, I would appreciate any advice and guidance to what should be my next response.

 

Please let me know if you need me to post a copy document of the communication between HBOS and Intrum.

[dx100uk]

On 11/03/2021 at 17:04, dx100uk said:

On or around 9 January 2012, the respondent entered In a regulated finance agreement with Bank of Scotland plc ("the original Creditor·), agreement number xxxxxxxxx in respect of an Overdraft account (the Finance Agreement").

The respondent fell into arrears under the Finance Agreement, Default Notice was issued by the Original Creditor to the respondent. The respondent failed to pay the arrears owed to the Original Creditor under the Finance Agreement in accordance with the Default Notice.

 

On or around 25 August 2017 the respondent was deemed by the Original Creditor to be in default of the Finance Agreement. The Finance
Agreement was subsequently terminated by the Original Creditor. At the date of termination a sum of £1 ,332.82 remained due and outstanding by the respondent to the Original Creditor.

 

if its governed by a finance agreement, under what statute? the consumer credit Act? so where is the signed agreement under said act please?

 

where is the proof the original creditor issued a default notice?

 

where is the termination notice issued by the original creditor?

 

 

 

[salkirwi]

That is the exact argument I put to the Judge.

 

In fact, I went further by saying that the Claimant written claim was formed of around 20 text lines.  The claimant quoted the Financial Agreement phrase 9 times . . The claimant knows very well how important this document to their case  . .  Where is it?  

The claimant also mentioned the Default Notice twice . . where is the DN?

 

The Judge kept trying to go back to apportioning the claimed sum into two parts: unlawful bank charges and outstanding owed money.

 

The communication document between HBOS and Intrum that was made in early is clear is a proof that there is no agreement or DN.   . .  I think you should see it DX100. 

Edited July 2, 2021 by salkirwi

[dx100uk]

well we call it judge lottery, in this case sheriff lottery, your issue is that educate him on the importance of the Consumer credit act, however, in reality it doesn't apply as an OD is not covered by it, only in section 5. and ofcourse there is no requirement for a DN but as andy said

 

7. The claimant is put to strict proof to disclose and evidence that a Default Notice was issued and what date pursuant to sections 87/88 of the Consumer Credit Act 1974 rather than a Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice as it should be.   

[salkirwi]

You are right. I need to educate the Sheriff on the importance of Consumer Credit Act, but I need to educate myself first.  Hence,  I have started trolling the Internet to try do that before the next CMD.

 

In the meantime, I am uploading a copy document of the communication that I mentioned above.  I would appreciate your views on it.

HBOS-Intrum-Portal-Comunication.PDF

[dx100uk]

has this been seen by the sheriff?