Tweet
Hi
I have received a Citation (Scottish resident) from a firm of solicitors. It is in relation to an Amex card which has been in dispute for three years. I have 21 days to respond, either (a) admit and have a CCJ or (b) defend. The story is as follows:
1. Amex sent me a default (appears to conform) back in 2005 and then passed me around 3 DCA's. They all ended up sending the accounts back to Amex.
2. Undertook regular SAR requests on Amex and requested a true copy of my credit agreement as per S78(1) of the 1974 CCA. Got back an application (dated xx/xx/2003) which does not conform in form or content to Section 60 (1) of the Act and as such are unenforceable under Section 127 (3) of the Act
3. I offered 20% settlement (without prejudice) and it was rejected.
So we are near the end game, I have a Citation (writ) and want to defend. I have followed the process in England and now wish to get disclosure in relation to (i) the agreement which they seek to reply on and which will need to conform to the Act and (ii) any other information that they seek to rely on in court.
I am not familiar with the Scottish process – doe anyone have experience in Scotland of this type of litigation?.
------------------------------- merged -------------------------------
Since we don't have CRP 31.16 in Scotland so I sent this off:
Dear Sirs
REQUEST FOR INFORMATION
On xx December 2008, I received a court claim from your firm as referenced above. I write to inform you that I intend to defend this Claim.
In order for me to file a defence and counter claim, I require some further information from you. Given that this matter is now the subject of legal proceedings, I hereby request that you provide me with the information and documents detailed below within seven days of the receipt of this letter.
1. I require you to supply me with true and signed copies of the executed credit agreement to which you refer in your claim, together with any terms and conditions that applied to this account at the time they were opened and those at the time of the alleged default. In this respect, your attention is specifically drawn to the compliance of such documentation as prescribed under Section 78 (1) of the Consumer Credit Act 1974 (hereinafter referred to as “the Act”).
If it transpires that no such documentation exists, or is in a form that would render any alleged debt unenforceable, you must write to tell me within the prescribed time limit given above.
2. All records and correspondence that you hold on me relevant to this claim, including but not limited to:
a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your firm and/or your Client.
b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with your Client.
c. True copies of the default notice that your Client alleges to have been served to me, as required under the Act.
d. Details of any collection charge(s) added to the accounts; specifically, the date such were levied, the amount of the charge(s), a detailed financial breakdown of how the charge(s) were calculated, and what the charge(s) covers.
3. Any other documents that you seek to rely on in court.
I think it entirely appropriate at this time to inform you that previous attempts at enforcement has resulted in the firms involved returning the accounts to your Client. For the avoidance of doubt, you should particularly take note that Section 127 (3) of the Act remains a valid defence in the absence of an enforceable agreement under the Act, despite the amendments contained within the Consumer Credit Act 2006 that have now come into force and, which you will note, are not retrospective.
Please note that your Client has not fulfilled their obligation under Section 78 (1) of the Act and as such these accounts continue to remain in dispute. Specifically, the documents previously provided to me by your Client do not conform in form or content to Section 60 (1) of the Act and as such are unenforceable under Section 127 (3) of the Act. You will be aware that the court cannot make an enforcement order unless your Client is able to produce documentation containing all the prescribed terms of the executed agreement(s). In this respect, I refer you to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it must embody within the agreement, the prescribed terms as laid out in the SI 1983/1553.
I require your cooperation in this matter.
Yours
Dilly
I have received a Citation (Scottish resident) from a firm of solicitors. It is in relation to an Amex card which has been in dispute for three years. I have 21 days to respond, either (a) admit and have a CCJ or (b) defend. The story is as follows:
1. Amex sent me a default (appears to conform) back in 2005 and then passed me around 3 DCA's. They all ended up sending the accounts back to Amex.
2. Undertook regular SAR requests on Amex and requested a true copy of my credit agreement as per S78(1) of the 1974 CCA. Got back an application (dated xx/xx/2003) which does not conform in form or content to Section 60 (1) of the Act and as such are unenforceable under Section 127 (3) of the Act
3. I offered 20% settlement (without prejudice) and it was rejected.
So we are near the end game, I have a Citation (writ) and want to defend. I have followed the process in England and now wish to get disclosure in relation to (i) the agreement which they seek to reply on and which will need to conform to the Act and (ii) any other information that they seek to rely on in court.
I am not familiar with the Scottish process – doe anyone have experience in Scotland of this type of litigation?.
------------------------------- merged -------------------------------
Since we don't have CRP 31.16 in Scotland so I sent this off:
Dear Sirs
REQUEST FOR INFORMATION
On xx December 2008, I received a court claim from your firm as referenced above. I write to inform you that I intend to defend this Claim.
In order for me to file a defence and counter claim, I require some further information from you. Given that this matter is now the subject of legal proceedings, I hereby request that you provide me with the information and documents detailed below within seven days of the receipt of this letter.
1. I require you to supply me with true and signed copies of the executed credit agreement to which you refer in your claim, together with any terms and conditions that applied to this account at the time they were opened and those at the time of the alleged default. In this respect, your attention is specifically drawn to the compliance of such documentation as prescribed under Section 78 (1) of the Consumer Credit Act 1974 (hereinafter referred to as “the Act”).
If it transpires that no such documentation exists, or is in a form that would render any alleged debt unenforceable, you must write to tell me within the prescribed time limit given above.
2. All records and correspondence that you hold on me relevant to this claim, including but not limited to:
a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your firm and/or your Client.
b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with your Client.
c. True copies of the default notice that your Client alleges to have been served to me, as required under the Act.
d. Details of any collection charge(s) added to the accounts; specifically, the date such were levied, the amount of the charge(s), a detailed financial breakdown of how the charge(s) were calculated, and what the charge(s) covers.
3. Any other documents that you seek to rely on in court.
I think it entirely appropriate at this time to inform you that previous attempts at enforcement has resulted in the firms involved returning the accounts to your Client. For the avoidance of doubt, you should particularly take note that Section 127 (3) of the Act remains a valid defence in the absence of an enforceable agreement under the Act, despite the amendments contained within the Consumer Credit Act 2006 that have now come into force and, which you will note, are not retrospective.
Please note that your Client has not fulfilled their obligation under Section 78 (1) of the Act and as such these accounts continue to remain in dispute. Specifically, the documents previously provided to me by your Client do not conform in form or content to Section 60 (1) of the Act and as such are unenforceable under Section 127 (3) of the Act. You will be aware that the court cannot make an enforcement order unless your Client is able to produce documentation containing all the prescribed terms of the executed agreement(s). In this respect, I refer you to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it must embody within the agreement, the prescribed terms as laid out in the SI 1983/1553.
I require your cooperation in this matter.
Yours
Dilly
Comment