Hello, thak you very, very much and may I pick your brain for a second? :)

by troozers Fri Jan 26, 2018 7:06 pm

Hi guys. I was a member of the old website, a few years ago now, and thanks to the wealth of information you guys gave us access to I have had a lot of success dealing with several Debt Collection agencies, as well as winning my case in Court against Cabot Finance & Shoosmiths! Thank you very much! I could not have done it alone.

Cabot & Shoosmiths took me to court back in August last year and Cabot & Shoosmiths failed to provide any of the documentation requested. The court then adjourned it until October, to give them time to get the requested documentation, even though they have failed to do so for 3 consecutive years! We reconvened in October and lo and behold Cabot & Shoosmith failed to provied any documentation, hell they didn't even bothering to turn up to Court so I won by default, with expenses and that was that. Until now!

I get home from work and I recieved this letter from Shoosmiths,

Hello, thak you very, very much and may I pick your brain for a second? :) Img_2010

Hello, thak you very, very much and may I pick your brain for a second? :) Img_2010

It also came with other documents. Having read them I can only assume these documents are supposed to be the statement of default, notice of default and the assignment notice. The very things I've been asking for and they we're supposed to bring to Court! The debt has only got a few months, if a year, till its statute barred and I had my day in court so what the hell are they trying to do here!?! I'm perplexed as to what to do next?

by Tiggy Sat Jan 27, 2018 2:58 pm

If you're sure this is the same debt AND the same claimant - remember Cabot have a number of different Companies - then write and tell them that this has already gone to Court and as such is subject to Res Judicata (already decided upon), quote the case number.

You will now be reporting their client to the FCA for threatening legal action when they know it's not possible and Shoosmiths to the Solicitors Regulation Authority for again attempting threatening legal action when they know full well they cannot proceed.

by troozers Tue Jan 30, 2018 5:20 pm

Yes, it is the same debt and the same claimant. Sent letters off to Cabot and Shoosmiths saying what you outlined. will be interesting to see what they do next. Thanks again Tiggy. Smile

by **assassin** Tue Jan 30, 2018 7:22 pm

Make sure you take Tiggy's advice and follow it up and report it to the SRA as they will act.

by Pat Thu Feb 01, 2018 10:38 am

Just wondering, did shoosmiths/cabot actually pay your costs i.e send a cheque to you?

If they did, it beggars belief they can also send that letter

That template they sent almost looks as if they think you had a Tomlin order or other sort of agreement because how else could you have an agreement with Cabot .

It is also nothing like a letter of claim as expected under the PAP

by pieintheskywhenIdie Thu Feb 01, 2018 2:03 pm

Be aware that this is in Scotland, in case that makes a difference to the advice given or the procedures referred to.

by Tiggy Thu Feb 01, 2018 3:19 pm

pieintheskywhenIdie wrote:Be aware that this is in Scotland, in case that makes a difference to the advice given or the procedures referred to.

Good point and apologies to the OP I should have checked first, it seems a Judgement by Default (in Scotland) may not be subject to Res Judicata.

You may have to take further advise from someone more knowledgeable of the Scottish legal system.

by pieintheskywhenIdie Thu Feb 01, 2018 6:37 pm

It depends on what the result back in October actually was. Decree of absolvitor means they can't raise a new claim on the same matter. Decree of dismissal would allow them to try a new claim. Alternatively rather than possibly getting legal terms wrong, how about a letter basically saying "You've already been to court once about this and lost. Please don't bother me about it again."

by troozers Thu Feb 01, 2018 6:46 pm

Pat wrote:Just wondering, did shoosmiths/cabot actually pay your costs i.e send a cheque to you?

If they did, it beggars belief they can also send that letter

That template they sent almost looks as if they think you had a Tomlin order or other sort of agreement because how else could you have an agreement with Cabot .

It is also nothing like a letter of claim as expected under the PAP

No, I never got any money from Shoosmiths or Cabot, not that I was expecting them to pay anything at all.
I have no idea what a Tomlin order is and I have never signed, nor verbally agreed to, any agreement with Cabot or Shoosmiths. I haven't called them on the phone, everything was done by mail, nor did I get to speak to them when it went to court. So I have no idea what agreement they are talking about in the letter.

Tiggy wrote:You may have to take further advise from someone more knowledgeable of the Scottish legal system.

The letter is already away so its just a case of wait and see what their reply is. Unfortunately, I don't know anyone knowledgeable in these matters and having never been in this position before I have no idea what happens next? All my informatioin came from you guys at the old web site.

by Tiggy Thu Feb 01, 2018 7:33 pm

Do you still have the paperwork from the hearing, would be interesting to see what the wording of the order actually was.

by troozers Mon Feb 05, 2018 6:23 pm

Tiggy wrote:Do you still have the paperwork from the hearing, would be interesting to see what the wording of the order actually was.

I have a copy of the Form 18I and it says,

The sheriff
(1) dismissed the action against the defender;
(2) and found no expenses due to by either party.

I also came home to this letter from Shoosmiths,
Hello, thak you very, very much and may I pick your brain for a second? :) Img_2011

Hello, thak you very, very much and may I pick your brain for a second? :) Img_2011

No mention of an agreement this time however, the letter comes with more apparent copies of all the documents asked for, notice of default and notice of assignment. Again these documents are photocopies of what appear to be fabricated documents, although that would be difficult to prove.
Please, some help and advice would grately appreciated.

by Tiggy Mon Feb 05, 2018 6:51 pm

I would take a visit to either a local advocat / solicitor ( you can usually get an hour free) or the CAB and ask what the likelihood is that a Judge in the Sheriff's Court will grant a Decree for Dismissal, they could be bluffing' if they did apply to overturn the dismissal ask for how you could argue against it.

The Scottish legal system is a nightmare and I know very little about its workings.

The key document is the agreement, which they can fabricate (reconstitute) but it has to be a true copy of the one you would have signed at the time.

Also, when did you default / they issue the default notice? It's 5 years for a debt to be statute barred in Scotland.

by troozers Mon Feb 05, 2018 7:04 pm

I'm sure all legal systems are full of pitholes, literal minefields and grey areas, hence my ignorance of it.
The original default notice was sent by Capital One back in October 2012 and my understanding was it was 6 years till statute barred!?
After a reading what's on here, I was considering starting the three letters again but this time with the new three letters, specifically the ones for debt purchasers, and sending them off to Cabot and Shoosmiths but I think that would be counter productive as it looks as if it is statue barred and this would mean a new apporach is necessary!

by Tiggy Mon Feb 05, 2018 7:39 pm

No, for Scotland it's 5 years from the issue of the default notice / last payment or acknowledgement of the debt.

you might again want to check as The Capital One agreement might have been enacted under the Jurisdiction of England and Wales but as you're in Scotland I would think Scottish Law applies, but you need to be 100% before you say you believe this debt to be Statute Barred, I'd take a visit to the Citizens Advise Bureau or call them.

http://www.scotlanddebt.co.uk/articles/personal-debt/statute-barred-debt-scotland

by pieintheskywhenIdie Mon Feb 05, 2018 7:56 pm

The bad new is that they're correct, a decree of dismissal does not stop them raising a new court claim for the same matter. However on the bright side it would be a new claim, not a continuation of the one that's been dismissed. So the statute barring clock is ticking. In Scotland it's five years as Tiggy states. The legislation is here Prescription and Limitation (Scotland) Act 1973. And another explanatory page here https://www.nationaldebtline.org/S/factsheets/Pages/statute-barred-debt-scotland/time-limits-for-recovering-debts.aspx.

Form 18I implies a small claim, under £3,000. Is that correct?

by troozers Mon Feb 05, 2018 8:03 pm

Tiggy wrote:you might again want to check as The Capital One agreement might have been enacted under the Jurisdiction of England and Wales but as you're in Scotland I would think Scottish Law applies, but you need to be 100% before you say you believe this debt to be Statute Barred, I'd take a visit to the Citizens Advise Bureau or call them.
http://www.scotlanddebt.co.uk/articles/personal-debt/statute-barred-debt-scotland

Thanks Tiggy. I'll definitely follow this up, give them a phone and see what they say.

pieintheskywhenIdie wrote:The bad new is that they're correct, a decree of dismissal does not stop them raising a new court claim for the same matter. However on the bright side it would be new proceedings, not a continuation of the case that's been dismissed. So the statute barring clock is ticking. In Scotland it's five years as Tiggy states. The legislation is here Prescription and Limitation (Scotland) Act 1973. And another explanatory page here https://www.nationaldebtline.org/S/factsheets/Pages/statute-barred-debt-scotland/time-limits-for-recovering-debts.aspx.

Form 18I implies a small claim, under £3,000. Is that correct?

Yes, its a small claims, under £3,000.
I thought I would get peace from them after its dismissal, oh well no joy as yet. But it would appear time is on my side as if it is under English Jurisdiction I have to wait until October this year but if Scottish jurisdiction applies it already is statute barred! As I started the three letter process with Capital One back in July 2012, the notice of default was sent in September 2012 and statement of default in October 2012. The last payment every made to the credit card account was also in July 2012 and by the wording of the template letters and every other letter I sent, I made no acknowledgement of the debt. So, stalling them would be the best strategy, at least until I can verify if it's statute barred!
Any suggestions? Very Happy

by Pat Tue Feb 06, 2018 8:45 am

Just out of curiosity

the statement of account, is it a full statement that shows money in, money out etc

I ask because recently a Judge saw a statement that just showed old balance, credit limit and new balance with no ins and outs, this was quite rightly refused as being of no use what so ever and could easily have been a fabrication

by Tiggy Tue Feb 06, 2018 8:26 pm

I could be wrong here but if the agreement is enacted under the Jurisdiction of England and Wales they need to use those Courts to obtain Judgement and transfer any order obtained for enforcement to the Sheriffs Court, you could still use the Scottish Limitations Act in your any defence you submitted.

However, they're using the Scottish Courts which to me would mean Scottish legal jurisdiction applies, so the Scottish Limitations Act should apply, but again I'm floundering when it comes to Scotland, but it's all definitely worth checking out, it could be your genuine 'get out of jail card'!!

by troozers Wed Feb 07, 2018 6:14 pm

Pat wrote:Just out of curiosity

the statement of account, is it a full statement that shows money in, money out etc

I ask because recently a Judge saw a statement that just showed old balance, credit limit and new balance with no ins and outs, this was quite rightly refused as being of no use what so ever and could easily have been a fabrication

Yes, they sent statements of account, they show some of the in's and out's transactions but it's not a comprehensive list and it doesn't list all of the in's and out's transactions.

Tiggy wrote:I could be wrong here but if the agreement is enacted under the Jurisdiction of England and Wales they need to use those Courts to obtain Judgement and transfer any order obtained for enforcement to the Sheriffs Court, you could still use the Scottish Limitations Act in your any defence you submitted.

However, they're using the Scottish Courts which to me would mean Scottish legal jurisdiction applies, so the Scottish Limitations Act should apply, but again I'm floundering when it comes to Scotland, but it's all definitely worth checking out, it could be your genuine 'get out of jail card'!!

I called Scotland Debt Solutions to get more info on which jurisdiction applies and they couldn't help me as the debt is under £10k, so they put me onto StepChange to get confirmation of the debt being statute barred. StepChange did confirm that Scottish Jurisdiction applies, because I live and work in Scotland, and is subject to the Scottish 5 year Statute Barred timescale.
Unfortunately, they couldn't verify that the debt was indeed statute barred, StepChange said the statute barred clock got reset when it went to court in August last year and that I should contact someone at Civil Legal Aid and they should be able to verify if it is statute barred, as well as explain the reason why Cabot/Shoosmiths can continue to threaten court action after they've already had their day(s) in court and lost, not 6 months ago! I haven't phoned Civil Legal Aid yet, done all this today on my lunch break and ran out of time. I think their offices might be closed now and I'm not long home from work so will have to wait till tomorrow to see what the Civil Legal Aid team say.

Should I ignore the letter Shoosmiths sent me or send a reply? As you can see at the bottom of the letter. Its the usual threat, they demanded a reply, with payment, within 14 days from the date of the letter, which is dated the 2nd or will re-raise court action and I am liable for costs. Even if the only aim is to start a game of letter tennis with them.

by Tiggy Wed Feb 07, 2018 7:44 pm

When were the original proceedings first commenced? You then need the date the default notice was issued by Capital One.

by troozers Wed Feb 07, 2018 7:53 pm

The hearing date for the first court date was 01/08/17 and then recessed for 8 weeks from that date, the second hearing was on 03/10/12
Capital One Notice of Default issued on 21/09/12
Capital Once Statement of Default issued on 11/10/12

by Tiggy Wed Feb 07, 2018 10:16 pm

OK, well they would have issued the claim well in advance of the hearing date, so definitely not statute barred when they commenced proceedings.

Technically, this debt is now statute barred, but if they manage to resurrect those original proceedings then it won't be, if that makes sense.

So basically, you're back to trying to block them from resurrecting this claim (ie pursuading the court to not allow them a 2nd chance) so anything you can get advice wise would be good !!

by troozers Sun Feb 11, 2018 3:06 pm

Yeah, thanks Tiggy, that does make sense. The debt wasn't statue barred when it first went to court but is now, technically speaking, Statute Barred. This is now my Trump card but when to play it?
I sent a letter to Shoosmiths politely telling them to "piss off" by rebutting their evidence and by starting a new fee schedule. All the advice I got from StepChange and from C.A.B., above what they've already told me, was to begin to pay the debt at X amount each month, they weren't interested in anything else and Civil Legal Aid haven't got back to me yet.

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