Cabot/Nolans Ordinary Cause court Claim Ayr Sheriffs - 2 Cards 1 HBOS - 1 MBNA

[AllyBallyG]

I've received notification that the forthcoming options hearing has been cancelled and that a decree by default has been awarded due to not responding to the recent claim that they hadn't received my defences. 

I've spoke the court today to work out what is happening and how we correct this! I'll update once I hear.

Any thoughts?

 

 

.

 

[dx100uk]

On 21/11/2023 at 12:58, AllyBallyG said:

Rolled the dice a touch with this. c2 weeks till Options hearing. Neither CCA request has been fulfilled yet.

They also claim they didn't receive my defence responses and now seek a decree by default. tut tut Court clerk confirms they received my defences and lodged them accordingly. 

they've pulled this trick several times before.

as long as your filed defence has the intimation sheet signed as the last page and a date you'll be ok,

sounds like a court mistake here to me speak to the clerk ,

i cant remember on ordinary cause claims but i think a repone is quite expensive, you shouldn't have to be doing this nor paying for one.

how did you serve your defence on nolans just for the record and did you get free proof of posting.

dx

[AllyBallyG]

Thanks, that gives me a bit of comfort. 

All onboard at my end: filed, signed and dated - and accepted by the court. They also confirmed they would send the defence to Nolans. 

I also posted my defence. Positive I've proof of posting, but will have to do a bit of digging to find it.

Clerk reviewing and will get back to me with what to do. Assuming this can be recalled, they've bought themselves more time to uncover the paperwork which they've yet to provide

[AllyBallyG]

It's taken nearly 2 weeks (!) now for the clerk to claim they have no recollection of any phonecall (despite me paying my defence fee over the phone!) or having forwarded my defences. Advising I now seek legal advice to lodge an appeal - by the 28th of December.

I honestly cannot believe this. Any steer on what I need to do to get an appeal in motion?

 

[dx100uk]

by appeal you mean repone? they have a decree on you now?

dx

[AllyBallyG]

They have a decree but cannot be enforced until 28th of Dec.

Email from clerk states "I would advise you to seek legal advice as this would now mean the Decree stands and an appeal would need to be raised with the Sheriff Appeal Court"

 

[dx100uk]

yes you need to raise a repone.

you should be ok on doing that yourself 

its all quite easy.

im not sure on the exact process for an ordinary cause decree, been a while.. bit i seem to remember you might need to include documentary evidence you paid fee/intimated defences etc.

 

[AllyBallyG]

OK, I might give the appeal court a call to understand what's required, otherwise I need to get reading. 

Absolutely astonished at this

[dx100uk]

you need to draw up a appeal note as its ordinary cause decree.

it a bit complex only done it once

i'll have to look over my notes.

dx

 

[AllyBallyG]

I spoke to the Sheriff Appeal Court - Civil (scotcourts.gov.uk) who have advised I need to lodge Form 6.2 to appeal the decision to grant a decree by default by the 28th of December.

Attached documents also proivided. 

I think it looks relatively straight forward. I'd welcome your thoughts on grounds of appeal: do i limit it to the fact i had already lodged and intimated my defences - or expand to reference the CCA requests are still not satisfied and therefore the alledged debts are unenforceable. 

chapter-06-initiation-and-progress-of-an-appeal.doc form-6-2 (2021).docx SAC Fees Handout (1 April 2023).pdf

Sheriff Appeal Court New User Guide .pdf

[dx100uk]

briefly mention as a side note,

Further complicating the respondents issues above, it should be noted that the pursuer had failed to provide any paperwork despite requests, including a legally binding CCA request under the consumer credit act, which has a time limit of 12+2 working days sent on (date) by (method) too.

[AllyBallyG]

Appeal hearing granted.  Nolan's insistent this be rejected; claiming they never received my defences (and have yet to) and that i didn't defend the interlocutor for decree by default. 

Original Sheriff's note states that they weren't made aware that I had lodged and intimated my defences by the clerk. If they had known, they would have proceeded to a hearing. 

 

I've received Nolan's written submissions, with mine due in a few days. Part of their submissions which included 3 case references, is the section below. 

The Respondents would wish to take this opportunity to submit that if the defence which is to be put forward is that there is an agreement under the Consumer Credit Act 1974 which is unenforceable then this is, in any event, not a proper or meritorious defence.

 Firstly the basis of the action is that the original creditor agreement for the supply of credit to the Appellant was terminated by the original creditor and the outstanding sum owed to the original creditor at that date was assigned to the Respondent. The action does not proceed on the basis of enforcing an existing agreement but rather seeking to recover sum of money. There is no agreement to be enforced.

 Secondly even if there was an agreement in place then this action does not amount to enforcement of the agreement.

 There is a clear line of authority which confirms that raising an action such as this is not enforcement in terms of the Consumer Credit Act. Reference is made to the case of Cabot Financial UK Limited v Watson which refers to the case of McGuffick v Royal Bank of Scotland.

 

My written submissions will state that I complied with the rules of the initial writ, defences lodged and intimated on time. There's been a breakdown of communication with the clerk and the sheriff i.e. I assumed they would have alerted them that I had lodged everything.

Shall i resend my orignal defences with this written submission? Still no response from either CCA request. Not sure whether that would still be the case if they've secured a decree? - or whether it's still genuinely unfulfilled. 

As always, any input would be much appreciated. 

[dx100uk]

usual nolan's twaddle, esp McGuffick v RBS. 

1st credit tried that one for years and lost in court several times.

they still had to prove there was at some point an enforceable credit agreement resulting in the debt they claim is owed.

the Original Creditor terminating an agreement via their default notice does not absolve the Pursuer from the consumer credit act. As the assignee of said agreement they are still bound by all its prescribed terms and conditions even after termination. 

i would resend to the pursuer everything yes.

its quite usual for nolans to pull this no defence/intimation receive GAG.

 

 

[AllyBallyG]

I got the decree by default removed, and was put back to a scheduled options hearing later this month.

They have now finally provided the documentation that I believe shows the debts are enforceable.

Fair enough, just the way it's worked out. 

I have until close of business today to adjust my pleadings.

My intention is to now accept guilt and propose a time to pay.

How do I adjust my original defence when i'm now accepting each statement?

 

 

[dx100uk]

scan up what they have sent to one mass PDf please.

dx

 

[AllyBallyG]

I'm in work just now, and have stupidly left it all at home. 

Over the past couple of weeks i've received copies of the credit agreement, with all the required terms etc. Notice of assignments and default notices. Details on all align

[dx100uk]

we are talking about £14k here...why did the OC sell the debt and get paid pennies and not crush you themselves in court. some things don't add up here.

does each Default notices date and the date in it's text give a CLEAR 14 days gap?

do both agreements show online tickbox that is Ticked and your typed name by each box giving a time and date and p'haps an IP address of the sign up device?

for each card you should receive the full agreement with all the prescribed terms listed clearly, it should have the correct name/address for the time of sign up.

for each card you should receive a separate set of Terms & Conditions they should have the correct name/address for the time of sign up in the top section. they must be complete.

 

[AllyBallyG]

Sorry, start again. I've got mixed up juggling too much!

BoS: Full agreement, terms, correct name and address, and notice of assignments. 

MBNA: only notice of assignment received so far. Suspect they have the full agreement (based on SAR) and a default notice can easily be replicated.

On that basis, given the MBNA stuff is outstanding, there's no harm in letting this run to the options hearing? 

Do I need to adjust my pleadings for BoS?

Confused because both are lumped into the one claim

[dx100uk]

they have to provide the mbna docs , forget what you have in the sar, keep that too yourself.

so you need to adjust your pleadings , stating the above facts,

like ....the claimant has provided documentation for one of the credit cards within their claim, but have failed to supply any relevant documentation regarding other. etc

[dx100uk]

On 14/03/2024 at 10:50, dx100uk said:

scan up what they have sent to one mass PDf please.

dx

 

 

[AllyBallyG]

Will upload tonight

[AllyBallyG]

BoS: CC agreement, default notice and notice of assignment, all 3 have been drip fed to me over the past few weeks, with the agreement being received a day before the pleadings adjustment deadline. 

MBNA: notice of assignment only so far.

SAR suggests Cabot requested and received both agreements via some document transfer portal a few days after my original request back in October. Looks like they are playing games, dragging this out and undoubtedly increasing their costs.

BoS all.pdf MBNA noa (1)_2.pdf

[dx100uk]

BOS:

Quote

The General Credit Card conditions also form part of this agreement and are contained in the document headed "General Credit Card conditions". In condition 21 we set out special meanings etc

there are no T&C's included? (should be pages of them)  that CCA return is incomplete and thus renders the agreement void.

NOA is ok

DN is OK

MBNA...NOA OK but nothing else.

 

you are in a strong position.

dx

 

 

 

[AllyBallyG]

I've had a look through both SARs. 

BoS: Cabot requested agreement in Sept-23, and received it within a weeks. T&Cs are available. They may not have them yet - unless they are just prolongoing the pain!

MBNA: Cabot requested agreement and T&Cs in Sept-23, and received both within a week - however have again not provided them to date.

I had been weighing up accepting that i'm being played a touch here, them dragging this on as long as possible, and therefore could use the revised writ (that actually has details now) to say i am now in an informed position to respond and accept - unlike the original writ which contained very limited details!

I was intent on reaching out to agree a repayment plan with Cabot/Nolan's ahead of the hearing to show my eagerness to co-operate and resolve - rather than delaying, what I think, is the inevitable. 

 

[dx100uk]

as i said, keep any details of what you might hold in sar's you made to yourself.

dx