Help Would Be Much Appreciated

[oconelec]

Good afternoon.

I have an options hearing at Aberdeen Sheriff Court on the 28th of this week with Cabot Financial, it was originally dated for the 7th January but Cabot requested a Sist of action & was refused & i was ordered to submit a note of defence as my first one was not in the proper form, i have completed & submitted the defence note.

What i would like to ask anyone is, as Cabot have failed to supply the documentation requested under a CCA request, should i submit an Incidental Application to the court requesting the court makes an order for the documentation to be disclosed by Cabot before the options hearing on the 28th, i understand that they are required to have this notice at least 2 days in advance, should i do this & hope that they still fail to produce the documentation & then move for a dismissal on the grounds of defaulting on a CCA request. This action is an Ordinary cause case in Scotland.

Much appreciate anyone's help.

[enaid]

Re: Help Would Be Much Appreciated

Hi and welcome I will ask [MENTION=29921]nemesis[/MENTION] to take a look but not sure if things are quite the same in Scotland

[oconelec]

Re: Help Would Be Much Appreciated

Thank You enaid.

Any help would be much appreciated.

[enaid]

Re: Help Would Be Much Appreciated

with your permission I will delete the other thread you started so as not to confuse matters?

[oconelec]

Re: Help Would Be Much Appreciated

Yes enaid, sorry about that.

[mystery1]

Re: Help Would Be Much Appreciated

Can you upload a sanitised version of the record please ?

The answer is probably not.

M1

[oconelec]

Re: Help Would Be Much Appreciated

Good afternoon Mystery1.


Thank you for the reply.

This is the letter i received from the court regarding the point that i should submit a defence note, do you think the Sheriff was hinting that i should lodge an incidental application for the requested documents.

[mystery1]

Re: Help Would Be Much Appreciated

If your defence contains a s78 defence then you don't want a s78 reply, ever, as you should win on that point alone !

M1

[oconelec]

Re: Help Would Be Much Appreciated

Thanks again mystery1.

This was the defence i submitted, are you saying that i should just appear at the options hearing on the 28th January & request a dismissal on the basis they have not produced the cca requested documents.

[mystery1]

Re: Help Would Be Much Appreciated

It is unlikely that at an options hearing a case would be dismissed. They will decide how to progress the case.

What you will say is that even if they prove what they say is true (the facts of their claim) they cannot win as s78(6) of the consumer credit act 1974 precludes enforcement if a request has not been fulfilled.

The lack of a default notice also precludes enforcement.

The sheriff will likely continue to another options hearing, debate, a proof before answer or a proof.

M1

[oconelec]

Re: Help Would Be Much Appreciated

Thanks again mystery1.

In which case, would it not be advantage to me if i did so put in an incidental application tomorrow requesting the court to seek those documents, if they could not produce the documents from 2000 surely that would go against them.

[mystery1]

Re: Help Would Be Much Appreciated

But you don't really want them !

M1

[oconelec]

Re: Help Would Be Much Appreciated

Thank you..

Your help is much appreciated & i understand what you are saying, can i assume that if the claimant has not fulfilled the request under the CCA request by 12 days their claim can not be enforced in law .

[mystery1]

Re: Help Would Be Much Appreciated

Thank you..

Your help is much appreciated & i understand what you are saying, can i assume that if the claimant has not fulfilled the request under the CCA request by 12 days their claim can not be enforced in law .

Correct, but they can fulfil after the deadline and rectify the situation.

M1

[oconelec]

Re: Help Would Be Much Appreciated

Thank you.

Mystery1, have you heard of section127 (3) of the consumer credit act, would this be of any good to me as the credit card agreement was from the year 2000.