Scottish and English debt laws are different, so if you are a Scottish resident and have questions on debt, then this is the place to post.

Moderators: TalbotWoods, JaneClack

By sgianthebard
#472205 Today did not go well for me at court. Let me give a brief run-down of what has happened so far for clarity:

Early last year (approx April) I received a letter of assignment from Arrow Global Ltd stating that they now owned a debt owed by me to Santander on a credit card in my name. The card had been taken out in 2008 and the credit limit of £4,000 had been reached (and apparently gone over by about £300) The last time a payment had been made to the account was in 2011. As I knew nothing about this, I thought it was a speculative letter from a DCA and ignored it. A few weeks later I received another one stating that the previous one was an error, but the error was merely the date of assignment. Once again, I ignored it.

After this I started receiving letters from Arrow Global Ltd threatening court action etc if I did not pay the £4300. I ignored these. Then I received a letter from their solicitors telling me to pay or face court action.

In September 2014, I sent a recorded letter asking for SAR. I then received a summons to court (Summary Cause)

I attended court in November with my defence being that I had asked for documents and had not received them. Arrow asked for 6 weeks to get the documents together. This was granted by the court.

2 days before the 6 weeks were up, I received through the post a credit card agreement plus a statement of account. The agreement had not been signed by anyone, but it did have my name and address and dates on it. There was no letter of assignment, or any statements other than a sheet of paper (statement of account) with figures on it saying that I owed £4300 at the time this company purchased the debt).

I attended court 2 days later and the pursuer's lawyer suggested that I was given time to look at the papers. The court offered me 4 weeks, I asked for 6 and was granted this.

So today..... I attended court at 10am. In one of the cases before me, Arrow dropped their case against a defendant. (they have done this on at least one case at every court hearing I have attended so far). When I was called forward, their lawyer told the court that I had asked for 6 weeks to look at the documents and they were now ready to proceed. The sheriff looked at me and said "What's your defence?" I told her that before I got to that, I'd like to ask the court to grant a decree of absolvitor as the pursuant had not followed Summary Cause Rules. I gave the sheriff a copy of the Act of Seredunt amendments 2009, where it states that on the initial writ, the claimant has to attach a copy of the original cc agreement. They had failed to do this, and therefore had broken the Rules.

The Sheriff looked at the copy and the highlighted section, and said that she was going to overlook this and allow the case to proceed (which is her right). I said that I understood that she could overlook a breach of the rules if there had been a mistake or an oversight, but it was my position that there had not been a mistake or an oversight and the reason there was no cc agreement attached to the initial writ was because the claimant did not have one. She asked their lawyer if they had one and he said they did and they had sent me a copy. I then produced the unsigned copy of the agreement they sent me and told the Sheriff that I believed this was not a proper agreement as it had not been signed by anyone and that was why they broke the rules by not attaching it. I said that had they attached this to the initial writ, I would have asked for a dismissal straight away and that they were banking on me just not turning up and getting a decree by default.

Well, the sheriff looked at me sternly and said, "Are you trying to tell me that they have just made this up? That you owe them £4300 and you don't owe them anything??" I told her that I believed they were a speculative company that relied on people not turning up at court.She then tells me that credit card agreements can be made online and don't need to be signed. I then asked her about the other documents I had asked for which I had not received (everything in the SAR, and mentioned 4 items which I had not received. I told her that I had asked for all of this in September and that they had still not complied. She poo-pooed that argument with a wave of her hand and said: "Are you telling me you don't have credit card with this number?" I said: "That is what I am telling you." She then a asked if I had ever had a credit card with this number. I replied "No."

She then said "Well, all I can do is set a date for proof and we'll see who has what."

So, I'm back to court in a few weeks, but it looks like she is going to accept that copy of the cc agreement in as their evidence that I owe this money, and I think I have no other defence.

It seems that in Scotland, it is the defendant who has the burden of proof :(
User avatar
By JaneClack
#472206 Except of course you say you did not have ever have this credit card if I am reading the information correctly.

This is beyond the remit of this site especially as it is Scottish law. I am hoping that wdm - one of our Scottish experts who posts is able to shed more light but as this is a legal matter I am unable to comment except to say that if you did not have this card ever then it looks like fraud as opposed to just speculative action by a DCA.
By wdm2
#472207 I'm afraid I can't be terribly helpful. The general principle is that it's a civil matter to be decided upon the balance of probabilities. It could be that you are the victim of fraud (card taken out in your name), it could be that you are the victim of mistake identity (not likely if the name and address are right), or it could be that the collection company are just, as you suggest, trying it on somehow. In any event it'll be decided upon the facts.

I would suggest that the Sheriff is mistaken in that there MUST at some stage have been a signed agreement, even following an on-line application. Nevertheless I don’t think the absence of the signed agreement would necessarily be fatal to the DCA’s case. I really don’t know what the Sheriff will make of it faced with your bald denial of the debt, if the only contrary evidence is the DCA’s equally sparse re-constituted agreement and the assertion that £4300 is owing.

If you haven’t already got it I strongly suggest getting either a solicitor involved or going to Citizen’s advice or some other advisory body.
By sgianthebard
#472212 I absolutely got the sense that even although my arguments were sound and that I had the sections of a particular ACT of Sederunt to support me in my argument, the sheriff poo-pooed me because she wanted to make a point that no common man without an education or qualification in law could come to court and win an argument over an experienced lawyer, and that she wasn't going to have some Joe Bloggs come into her courtroom and tell HER the law!

Another point I'm sure she was making was that if a common man wanted to have his case properly heard in court, he had better go and pay one of her colleagues to speak in court. Protecting their profession so that they can continue to charge huge fees to defend cases that we, as laypeople are perfectly capable of defending.

If I had to do it all over, I would act the poor wee uneducated working man who was in awe at the legal system and the courts and I would doff my cap reverentially at the sheriff and the big lawyers in their black gowns. I bet the outcome would have been different if I hadn't quoted the legal terms and definitions and pointed out exactly what rules the claimant's lawyers had broken...