Cabot Financial - Simple Procedure (Scotland)

[User457]

Yes response date is 14/02, I'm unsure what to put in there though ?

[jaguarsuk]

have a lawyer review what they produce

User457 I think the above might be your next course of action.

There's more information on the process here though: http://www.scotcourts.gov.uk/taking-...ing-to-a-claim

[User457]

They haven’t produced anything, I’ve looked around other posts and believe I should submit a defence stating they have failed to comply with my cca request ? I’m just unsure how to best do this.

[jaguarsuk]

The posts you are most likely seeing are related to English Law.

In the link I shared you don’t submit a defence, it says to submit a form. I don’t know enough to be able to help you.

The Scottish Legal system is different to England and if you submit the template defence from here you aren’t going to be doing the right thing.

ScottishSolicitor suggested that you seek the advice of a lawyer, given your lack of knowledge of the procedure and the lack of knowledge here to properly assist you I really think you ought to see a lawyer.

[Diana M]

The posts you are most likely seeing are related to English Law.

Just to clarify, the Consumer Credit Act is applicable in Scotland. It's UK Law not English Law (it's also applicable in Northern Ireland).

See here > http://www.legislation.gov.uk/ukpga/...tents/scotland

Scotland is a different legal jurisdiction to the rest of the UK so the procedure (how a case is presented/managed) is different but consumer credit legislation is the same as in England i.e. section 77-79 CCA and other statutory notices (Default Notice etc) would likely form part of the OP's Defence. It's the reference to CPRs which would be different.

Di

[jaguarsuk]

Just to clarify, the Consumer Credit Act is applicable in Scotland. It's UK Law not English Law (it's also applicable in Northern Ireland).

See here > http://www.legislation.gov.uk/ukpga/...tents/scotland

Scotland is a different legal jurisdiction to the rest of the UK so the procedure (how a case is presented/managed) is different but consumer credit legislation is the same as in England i.e. section 77-79 CCA and other statutory notices (Default Notice etc) would likely form part of the OP's Defence. It's the reference to CPRs which would be different.

Di

I assume you didn't bother to read back and just jumped on the one statement.

Filing a defence relates to English proceedure which is why I said "The posts you are most likely seeing are related to English Law" in response to the OP saying "believe I should submit a defence." The response was specifically to that statement and nobody is stating the CCA 1974 is not applicable to Scotland. In fact the OP knows it is that's why they made a request to the Claimant and are stating they haven't had a response.

If the OP submits a defence using the template following other posts incorrectly instead of the Response Form (Form 4A) then it wouldn't have been correct and discouraging them from doing so by explaining those posts are likely to be related to England using the term "Law" instead of "Procedure" is neither misleading and is wholly appropriate.

I might know that form has to be submitted, but that does not mean I'm confident of advising how it should be completed or submitted and hence why I reiterated " I really think you ought to see a lawyer."

[Diana M]

I assume you didn't bother to read back and just jumped on the one statement.

You assumed wrong.

I read all Scottish claim threads from start to finish (including this one) since my firm has previously 'consulted' on cases with a lawyer based in Scotland.

I am familiar with the procedure but not able to practice in the jurisdiction.

Diana M

[jaguarsuk]

You assumed wrong.

I read all Scottish claim threads from start to finish (including this one) since my firm has previously 'consulted' on cases with a lawyer based in Scotland.

I am familiar with the procedure but not able to practice in the jurisdiction.

Diana M

I have had family dealings with Scottish Law personally relating to my step daughters, but I wouldn't want to advise anyone as I only did exactly what was necessary to resolve our issue.

That's how I knew where to look for the link. I really do think the OP should speak to a lawyer though.

[Ruby]

In my personal experience with Nolans/Cabot, Nolans will happily (and frustratingly legally) issue court proceedings without the supporting paperwork (ie. a CCA agreement). You will need to appear in court (as I did in Paisley) and defend yourself. As scary and daunting as this sounds, all you will need to do is explain to the judge that you have not received any supporting paperwork from Cabot/Nolans to back up their claim. It is not likely that Cabot will produce any compliant paperwork, especially after all these years! If they do, get back in touch on this site and we will help you.

You have done the right thing up to now and sent off a CCA request to Cabot. Perhaps a copy of this request would have been beneficial to send off to Nolans as well, just for their records

Stay strong!! Nolans are chancers! They recently tried to collect on another debt that has been statute barred for years!!!!

[ScottishSolicitor]

In my personal experience with Nolans/Cabot, Nolans will happily (and frustratingly legally) issue court proceedings without the supporting paperwork (ie. a CCA agreement). You will need to appear in court (as I did in Paisley) and defend yourself. As scary and daunting as this sounds, all you will need to do is explain to the judge that you have not received any supporting paperwork from Cabot/Nolans to back up their claim. It is not likely that Cabot will produce any compliant paperwork, especially after all these years! If they do, get back in touch on this site and we will help you.

You have done the right thing up to now and sent off a CCA request to Cabot. Perhaps a copy of this request would have been beneficial to send off to Nolans as well, just for their records

Stay strong!! Nolans are chancers! They recently tried to collect on another debt that has been statute barred for years!!!!

Its a moot point whether raising proceedings without prior sight of the supporting paperwork is "legal". It could be called an abuse of process and at some point I think (if its not happened already) a Scottish Sheriff is going to come down heavily on the agents who apparently raise these claims without sourcing the documents needed from their clients in advance. Ruby's advice is sound but you still need to properly sort your own paperwork to lodge before the deadline.

[User457]

Hi All

So ive got the response form ready, will be emailing to court as need to ensure they get it before the 14/02.

Most of the form is simple to complete but please see below my box D1 and D2.Â* If you can think of anything else to add please let me know.....

D1
Â*
As a respondent I specifically make reference to the Simple Procedure Rules 2016 in so far as my understanding is that:
Â*
Â*1.4(2)
Â*The Sheriff must ensure that parties who are not represented, or parties who do not have legal representation, are not unfairly disadvantaged...
Â*
Â*... I am being represented by a lay person and are totally at a loss upon how to respond to such a claim & welcome any assistance the sheriff can give me.
Â*
Â*1.6(9)
Â*When appearing against a party who is not represented, or who is not legally represented, representatives must not take advantage of the party.
Â*
Â*1.6(10)
Â*
Â*When appearing against a party who is not represented, or who is not legally represented, representatives must help the court to allow that person to argue a case fairly.
Â*
Â*..I expect the claimants' representative to employ the above.
Â*..........
Â*
Â*The Claimant is a well known Debt Buyer or debt collection Agency that purchases large debt portfolio 'En-Masse' for a discounted Pence to Pound reduced value.
Â*
Â*These debt portfolios, be them direct from the Original Creditors or exchanged under sales between like Debt Buying Organizations, were placed for sale because the Original Creditor neither wished to litigate against their customer themselves due to bad publicity or are typically related to issues of enforceability under the consumer credit Act or are as a result of inflated sums due to penalties and or interest levied upon them that are unfair & unlawful under FCA regulations.
Â*
Â*According to s.189 of the consumer credit Act 1974 when an assignee purchases debts [or otherwise acquires rights under a credit agreement] it also acquires certain obligations to the borrower including the duty to comply with CCA requirements, such as the rules on statements and notices and other post-contractual information. The assignee becomes the creditor under the agreement, thereby ensuring that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.
Â*
Â*It is admitted with regards to the respondent once having financial dealings with [Next Directory - original Creditor] in the past.
Â*I do not recall any precise details or agreements and have sought verification from the claimant who has not complied with my request for further information. It is denied that I am indebted for any alleged balance claimed.
Â*
Â*The Respondent puts the Claimant to strict proof provide under the Consumer Credit Act the required documents to legally be able to enforce and bring this claim to court namely:
Â*
Â*The Signed Consumer Credit Agreement
Â*The Notice of Assignment
Â*The Default Notice Issued By The Original Creditor Under CCA 1974 Section 87/8
Â*
Â*A detailed statement of the account and how, with specific reference toward additional interest added because of late/no payment, and any additional penalty fees or interest added, have resulted in the balance now claimed.
Â*
Â*The court will be aware that penalty charges 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).
Â*I will contend at trial that such charges are unfair in their entirety.
Â*
Â*D2
Â*
The claimant has averred on their claim form that they hold the signed agreement under the Consumer Credit Act 1974 dated 17/10/2011.
Â*
Â*A CCA Request section 7, was sent recorded delivery on 17/01/18.
To date the claimant has failed to comply with the statutory time limit & is in default of said request.
Â*
The respondent is unaware of any default notice served under the consumer credit act by either the original creditor or the claimant in the last 7 years.
Â*
Â*

Â*

[User457]

Ok so I’ve emailed back the response form and the court have acknowledged that they have it. They have advised me to send a copy to Nolan’s who are Cabot’s solicitors ? Why ?

[jaguarsuk]

Ok so I’ve emailed back the response form and the court have acknowledged that they have it. They have advised me to send a copy to Nolan’s who are Cabot’s solicitors ? Why ?

In court proceedings it's usual to serve the court and all parties with documents, forms etc. It's just part of the procedure and nothing to worry about.

[User457]

In court proceedings it's usual to serve the court and all parties with documents, forms etc. It's just part of the procedure and nothing to worry about.

Thanks for that, I have emailed over my response form to Nolans and will now await the sheriffs decision.
I'm hoping the sheriff will dismiss the claim, as cabot have failed to comply with the cca request, but i'll wait and see.

[jaguarsuk]

Thanks for that, I have emailed over my response form to Nolans and will now await the sheriffs decision.
I'm hoping the sheriff will dismiss the claim, as cabot have failed to comply with the cca request, but i'll wait and see.

As I have said earlier my knowledge of Scottish Law and procedure is limited to defeating a family action based on jurisdiction, so I don't know what the next steps of the process are going to be. However, what ever comes next please come back to let us know as it's interesting to know.

If the sheriff dismisses it for example it's useful to know because if someone else posts a similar question in future this thread would give them a bit of a guide especially as you have copied what you placed in your response form above.