Lowell-Shoosmiths MBNA Account Claim Raised in Scottish Court

[echat11]

Ok, defence lodged online today. Nothing in post from anyone, although credit file curiously has a Q showing against status of account for query now when checking with checkmyfile. Case Management Discussion booked for 10am on 13th June according to court portal, so guess we'll see what happens. I'm guessing if nothing appears in response to CCA/SAR then their case will be a bit shaky?

Yes regards CCA.

The SAR might hold valuable information, but best wait to see what they send.
It's just an information request.

[aldo102938]

Ok, had feedback from Sheriff asking for communication between parties to resolve before Case Management Meeting via Webex. My thoughts are to give Lowell a further 7 days to produce CCA/SARs and if not instruct them to cease the case… or is there a better way to approach this?

[echat11]

Ok, had feedback from Sheriff asking for communication between parties to resolve before Case Management Meeting via Webex. My thoughts are to give Lowell a further 7 days to produce CCA/SARs and if not instruct them to cease the case… or is there a better way to approach this?

The SAR isn't a formal request as such. If they fail to provide a compliant copy of the CCA, then I'm not sure how they can progress the case, so well worth requesting that they cease the case.

[aldo102938]

So Sheriff has ordered evidence to be relied upon in case management meeting to the lodged no later than 14 days before the meeting, which is 10 days from now. I’ve had nothing provided as per my queries. I’m guessing if Lowell/Shoosmith don’t provide a CCA agreement as evidence then the case will be dropped by the court?

[echat11]

So Sheriff has ordered evidence to be relied upon in case management meeting to the lodged no later than 14 days before the meeting, which is 10 days from now. I’ve had nothing provided as per my queries. I’m guessing if Lowell/Shoosmith don’t provide a CCA agreement as evidence then the case will be dropped by the court?

You still need to make your case i.e. they provided the requested documents etc, follow the Protocols which apply to the case / Court. Don't expect the Court to be your friend.

[aldo102938]

Ok, have now had feedback from Shoosmiths to say they are pausing the case awaiting SAR docs from Lowell. Case has been updated on Scot Courts systems requesting pause.

[echat11]

Ok, have now had feedback from Shoosmiths to say they are pausing the case awaiting SAR docs from Lowell. Case has been updated on Scot Courts systems requesting pause.

Thanks for update.

[aldo102938]

Given the lack of documentation in support of their claim against me, namely lack of CCA Agreement, and that its over 62 days since requesting SAR, and 30 days requesting CCA, is there a procedure to request a dismissal by the judge? Surely the judge (Sheriff) wouldn’t be happy with an unprepared defence?

[aldo102938]

*unprepared claim

[echat11]

Given the lack of documentation in support of their claim against me, namely lack of CCA Agreement, and that its over 62 days since requesting SAR, and 30 days requesting CCA, is there a procedure to request a dismissal by the judge? Surely the judge (Sheriff) wouldn’t be happy with an unprepared defence?

Your Defence will reflect the fact that they haven't complied with your request.

[aldo102938]

Ok, filed a Form 9A yesterday requesting case is dismissed due to lack of evidence being provided to support Lowell's claim, and today I received an email from WalkerLove supplying a copy CCA agreement (not sure if due to my 9A lodging or coincidence) but can't rule out a reconstituted or bogus CCA agreement. I'm planning to still defend on lack of documentation, as not had any copy statements, default notice or anything relating to the transfer of debt from Capital One to Lowell. Is there anything else I should be asking for?

[echat11]

Ok, filed a Form 9A yesterday requesting case is dismissed due to lack of evidence being provided to support Lowell's claim, and today I received an email from WalkerLove supplying a copy CCA agreement (not sure if due to my 9A lodging or coincidence) but can't rule out a reconstituted or bogus CCA agreement. I'm planning to still defend on lack of documentation, as not had any copy statements, default notice or anything relating to the transfer of debt from Capital One to Lowell. Is there anything else I should be asking for?

You need check the CCA for anomalies, see if all the prescribed terms are on the agreement.
If the agreement has been 'varied' then they need to provide 'terms and conditions' for the variation.

Prepare you Defence and send that off.

[aldo102938]

Ok got a document package from Shoosmiths which appears to have correct default notice, agreement and exported transactions for statements.

The statements don't have my name on them, just a reference number that matches the supplied ref on credit agreement. Does this suffice as proof of statements or should it be equivalent copies to what I would receive in the post?

From the supplied statements, there was a period of three months (Dec 2018-Feb 2019) where no payments were made (so effectively in default), but then I made payments on March/Apr/May 2019 but not for the full amounts asked for in each statement. A default notice was raised on 10/10/2019, before selling debt to Lowells on 18/6/2020.

Given the account was in essence in default prior to the default notice being produced, and that the payments were not maintained as requested, would this mean my account default date is actually before the default notice being produced? Just trying to work out if I could claim this is statute barred, or if I'm just going to have to make payment to avoid a CCJ.

The Small Claims Case was registered on the 6/5/2024.

Also Sheriff has dismissed request to pause case by Shoosmiths, and is still scheduled for 13/6/2024.

[echat11]

Ok got a document package from Shoosmiths which appears to have correct default notice, agreement and exported transactions for statements.

The statements don't have my name on them, just a reference number that matches the supplied ref on credit agreement. Does this suffice as proof of statements or should it be equivalent copies to what I would receive in the post?

From the supplied statements, there was a period of three months (Dec 2018-Feb 2019) where no payments were made (so effectively in default), but then I made payments on March/Apr/May 2019 but not for the full amounts asked for in each statement. A default notice was raised on 10/10/2019, before selling debt to Lowells on 18/6/2020.

Given the account was in essence in default prior to the default notice being produced, and that the payments were not maintained as requested, would this mean my account default date is actually before the default notice being produced? Just trying to work out if I could claim this is statute barred, or if I'm just going to have to make payment to avoid a CCJ.

The Small Claims Case was registered on the 6/5/2024.

Also Sheriff has dismissed request to pause case by Shoosmiths, and is still scheduled for 13/6/2024.

The account is closed if you don't rectify the the Default once you've received the Default Notice, so that would have been 10/10/19. I think because payments were made, they kept the account opened.

Look at the documents for anomalies, the CCA, the Default Notice and letter of assignment.

For the Hearing it might be an idea to provide the Court and Creditor a Skeleton Argument highlighting you Defence, Personal Circumstances etc. The fallback is to fill in an income and expenditure form, so you are only paying what you can afford, if that £1 a month so be it.

https://www.handbook.fca.org.uk/handbook/CONC/13/1.html

https://lawzone.legal/when-is-a-cred...unenforceable/

Check Default Notice and letter of assignment, do they have all the required details and are compliant.

[aldo102938]

On reviewing the bundle again, I seem to have two copies of a CCA agreement, the original one (which had a £200 limit on opening) which has typed name and date for my acceptance, and another under section heading "defaulted agreement" which is more like something that would have been printed and sent in the mail showing a credit limit of £1800 but doesn't have my signature on it, but has the opening statement of "Before signing this agreement" then has a list of things I need to do/be aware of. Should this variation have my signature on it either wet or electronically to count as a valid agreement?

It is also signed by Darren Carlile who only started as VP of Operations in 2018 on checking Linked IN.