Absolutely. There's not much point in putting in the effort if you can't be botthered formatting it in the way the court wants. It's all about details, not just the format of your reply, but the efficacy of your arguments, the subtlety and strength of your defence and counter thrust, and the way you conduct yourself. If you can't be bothered with nit-picking detail and crossing all the t's and dotting all the i's then you'll get trampled. This isn't a time for asserting your individuality and cocking-your-snoop at authority. This it the time to buckle down, playing by their rules, and making sure you win. Minor formatting mistakes might be forgiven, but don't underestimate the importance of doing it right. You're out to impress the Sheriff, not annoy him.

Yep, CCA the current owner of the debt - the one who instructed the solicitor - not the OC. If I suggested that, I'm sorry, it wasn't intentional and I did mean the current debt owner. The solicitor should pass it on, but as I said don't rely upon it. If you're relying upon the rate of interest difference, you'll need to be extremely robust in your arguments as it could be tough. Don't forget in your initial response to do things like double-line spacing, your full details etc. There's lots of things on the internet regarding the correct format for your reply to the initial Writ in Scotland so make sure you following them.

They are playing on your naivity and hoping that you don't act within the timeframes and that they get judgement by default. It's probably not helped by using English terms like "Strict Proof" (that doesn't exist in a Sheriff Court and means nothing). You can't use their inaction as a reason for not responding. If you don't have paperwork then say so, if they haven't fullfilled their S78 obligations then say so in your initial defence. They know they can't just magically produce an agreement in court as a fait accompli so don't worry about that - it would have to be listed in their inventory of productions and you would need to have sight of it before court or else they won't be able to rely upon it. You''ve probably sent your CCA request to the wrong people. Y+K are solicitors, not the creditor. Maybe they should have passed it on and I'm sure a Sheriff would take a dim view if they haven't, but best not to assume anything and get it off to the creditor. The Scottish rules are complicated. Have a look here - https://www.scotcourts.gov.uk/rules-and-practice/rules-of-court/sheriff-court---civil-procedure-rules/ordinary-cause-rules - paritcularly the 2 parts of Section 9 as these are the rules you'll be playing by. You can do it yourself, but no-one can really guide you unless you have a basic grasp of the concepts. You'll need to get your head around "Condescendence and Answers" (your arguments), "Pleas in Law" (what you want the court do based on your arguements or law), Inventory of Production (the list of documents each side is relying upon), Rule 22 Notes (asking the Court to ignore parts of the defence), Options Hearings, Proof, and Debate. It's not impossible, but you have to put the effort in yourself and it will be considerable. The good thing is, if they haven't provided you with a reply to your s78 request then it is an absolute (but possibly temporary) defence. The agreement being non-compliant is an absolute defence too but you have to have solid arguements why it is so and be able to defend that position. Don't think for one minute that these issues will stop them. There will be a considerable sunk cost for them already now that a solicitor is involved. It isn't going to cost them that much more to take it further to see how well you can defend your position in the initial stages. They will hoping your lack of knowledge overwhelms you and you give up...don't let them do that to you. I can give you a copy of some skeleton arguements for the first stage but you must not use them without understanding what is being said, why it is being said, and what parts might be relevant for YOU. Just copying it without an attempt at understanding it is going to drop you in hot water. Sometimes it seems the same Pleas are being used twice, but they are slightly different takes on a defence in law. I'm sure I've posted this before, but here you are: COURT REF. NO:- DEFENCES in causa BANK ADDRESS Pursuers Against YOUR ADDRESS Defender ANSWERS TO CONDESCENDENCE The averments relating to the defender and jurisdiction are admitted. Quoad ultra not known and not admitted. It is explained that The Pursuers have not provided any documentation to substantiate their claim as craved. The Defender did have a Credit Card, card number 0123 2345 3456 4567. The account for CREDIT CARD, card number 0123 2345 3456 4567, was in dispute with the Pursuers under s.78(6) of the Consumer Credit Act 1974 as amended. This dispute was the result of a failure by the Pursuers to satisfy a statutory request by the Defender on DATE OF CCA REQUEST under s.78(1) of the aforementioned act asking for details of the properly executed agreement for the CREDIT CARD. Section 78(6) of the Consumer Credit Act 1974 states: “If the creditor under an agreement fails to comply with subsection (1) - (a) he is not entitled, while the default continues, to enforce the agreement”. The Pursuers did supply a photocopy of an application form for a CREDIT CARD account but that application form that did not comply with s.60 or s.61 of the Consumer Credit Act 1974, or satisfy the requirements of s.78(1) of the same Act. The Defender informed to the Pursuers on DATE to inform them of their mistake quoting the relevant statutory instruments, re-iterated the request for the properly executed agreement for the CREDIT CARD, and gave them a further 7 days to respond with the correct information. The letter also informed them if they failed to respond within 7 days the Defender would consider the account to be in dispute and that s.78(6) of the Consumer Credit Act 1974 would be in force. The letter of REMINDER LETTER DATE was not responded to. The agreement is regulated by the Consumer Credit Act 1974 and copy certified account statements would be irrelevant as they do not provide proof of a properly executed and enforceable consumer credit agreement. The Pursuers are called upon to produce the original properly executed agreement for the CREDIT CARD (card number 0123 2345 3456 4567.), and the Terms & Conditions in place at the time of the original execution of the account, the last set of Terms & Conditions in place for the account, and all Terms & Conditions as varied between these two periods. The Pursuers averments are denied except insofar as coinciding herewith. Denied. It is explained that the Pursuers have failed to provide any evidence or documentation of the existence of a properly executed and enforceable credit agreement to substantiate their claim as craved. Denied that the Defender has delayed or refused to make payment. The Defender wrote to the Pursuers on DATE OF REMINDER LETTER making their position clear with reference to the relevant statutory instruments. The Pursuers averments are denied except insofar as coinciding herewith. PLEAS IN LAW The Pursuers, having failed to aver that the agreement exists and is regulated by the Consumer Credit Act 1974, or provide details in their initial writ of the regulated agreement, are in breach of The Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009. Accordingly, the action is incompetent, failing which irrelevant, and the Defender craves that this action should be dismissed. The Pursuers averments are irrelevant et separatim lacking in specification, the action should be dismissed. The Pursuers, having failed to comply with the terms of s.78(1) of the Consumer Credit Act 1974, are not entitled to enforce any agreement themselves by virtue of s.78(6)(a). Accordingly the action should be dismissed. The Pursuers, having failed to comply with the terms of s.60(1)©, s.61(1)(a) and S78 of the Consumer Credit Act 1974 and Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), and being accordingly disentitled to enforce any agreement the action should be dismissed. 5. The Pursuers being disentitled by s.127(3) of the Consumer Credit Act 1974 from enforcing any agreement by the court under s.65(1) in cases where the agreement does not satisfy S61(1)(a), the action should be dismissed. The Pursuers, having failed to demonstrate the steps taken to avoid an unfair relationship between the creditor and debtor as defined by the Consumer Credit Act 2006, are in breach of the unfair relationship terms of this Act. Accordingly the action should be dismissed. The Defender, not being in breach of any properly executed consumer credit agreement should be assoilziedfrom the conclusion of the writ and declared entitled in expenses. Esto which is denied any sum is due, the sum sued for being excessive, decree should not be granted as craved. in respect whereof Signed: Date: DATE OF DEFENCE YOUR NAME AND ADDRESS Defender

Unfortunately, when it's an Ordinary Cause you need to pay a fee to inform the court you will be defending. If it is Ordinary Cause (depends on amount) then they won't just be able to produce documents in court. What will follow is a fairly long process of back-and-forward of condescendence's, answers to condescendence, making sure copies of documents that will be relied upon are given to each side, final docoment lists, probably a couple of stays, possible proof, and then debate. They won't be able to just show up in court with the paperwork, and you will be given an opportunity to study it and respond to it before you end up on court. It could draw out for several months before you need to actually appear. The Scottish process is complicated, it is drawn out, but ultimately it is probably fairer in that all cards are on the table before you get to go to the court.

We own a small business that has ISDN lines installed for a number of years - our account is a business account. We use ISDN for clarity because standard PSTN line quality is extremely poor where we are and we often struggle to hear people on the other end. Our ISDN lines are essential for us. 36 days ago our ISDN lines went down. We've had several dates given to us when work will take place only for the work not to happen. We've been given excuse after excuse, promised things will "be escalated", but nothing makes any difference. We've been "looked after" by their so-called "Distressed Customer Team" for 3 weeks now but they are generally ineffective as they have no real power to make things happen. An email to the Chairman of BT on day 21 asking him to please help get our lines back up was just as useless as it elicited a response but no repair so far. We're told there is a major issue with the fibre between our local exchange and that in a larger town where the ISDN service is ultimately supplied from. We're several miles on the other side of our local exchange from the mail fibre line, yet 1 mile down the road from us - still on "this side" of the exchange - another company with ISDN supplied by BT have lines that are still working. Since our lines went down we haven't had a single order, but last year our turnover increased by over £350,000. Almost all our orders come on the back of customer recommendations, and incoming telephone enquiries from these recommendations are usually converted to customers. Our telephone lines being down are affecting us badly, and on a day-by-day growth comparison it has lost us over £34K of potential additional turnover this year so far. Redirecting our lines to standard telephone lines won't work because of quality issues, and redirecting to mobiles won't work due to poor reception where we are (we're in the countryside). We're pretty much at the end of our rope with this problem. We have no idea where to turn to, or what we can do to fix or problem. We hear lots of platitudes and "we agree this isn't acceptable" but no actual action. Is anyone aware of anything we can do to accelerate the repair, or any action we can take against BT for their appalling service and the affect it is having on our small business?

It's probably also worth pointing out the sentence: "Your contention that the prescribed terms were not included is wholly refuted as you would have received a copy of the prescribed terms and the terms and conditions prior to signing the agreement" which admits that the information they have sent does not include the prescribed terms. OK, maybe not admits, but having to make this sort of statement wouldn't be necessary if what they had sent DID have them. Solicitors will always write with gusto, confidence, and often pomposity, as if everything they say is the absolute truth and that you wouldn't dare challenge their authority. Their letters are designed to shake your confidence. You need to read between the lines in their letters because its often what they don't say that is more revealing than what they do say - especially in relation to direct questions or challenges. I think that having to go off on a tangent like they have suggests (to me anyway) that they know they don't have a strong case, but you must be vigorous and absolute in your defence.

I'm only speculating, but if the offer was made and accepted by letter, wouldn't that be legally binding? I had a similar issue in Scotland where a company accepted my V small offer (to save time and costs) by letter. A few days later they wrote saying there had been a mistake and that their previous letter should have rejected my offer. I went to a solicitor about it as I had my suspicions and he said it was too late for them, and that by accepting my offer it was binding on them. He wrote to them and I haven't heard a peep from them for several years. By now it would be statute barred.

It's only an example of some of the things you might need to say and the format. What you reply depends entirely upon what you have been sent. If you don't understand the example reply above, or the condescendence you have received, you might want to consult a solicitor. It might be best to post what you have received (minus personal details) to get a more accurate feedback.

You need to decide whether to defend or not. If you are going to defend you need to reply to the condescendence. Something like this might act as a holding action and initial reply - the exact words depend upon what you have received.... If it's any conciliation this was the initial defence used within the last 2 years that resulted in a decree of absolvitor i.e. they lost. They're not likely to get away with "true copies" in Scotland and a s78 defence will work. Check the Scottish Courts site for exact formatting. COURT REF. NO:- DEFENCES in causa BANK ADDRESS Pursuers Against YOUR ADDRESS Defender ANSWERS TO CONDESCENDENCE The averments relating to the defender and jurisdiction are admitted. Quoad ultra not known and not admitted. It is explained that The Pursuers have not provided any documentation to substantiate their claim as craved. The Defender did have a Credit Card, card number 0123 2345 3456 4567. The account for CREDIT CARD, card number 0123 2345 3456 4567, was in dispute with the Pursuers under s.78(6) of the Consumer Credit Act 1974 as amended. This dispute was the result of a failure by the Pursuers to satisfy a statutory request by the Defender on DATE OF CCA REQUEST under s.78(1) of the aforementioned act asking for details of the properly executed agreement for the CREDIT CARD. Section 78(6) of the Consumer Credit Act 1974 states: “If the creditor under an agreement fails to comply with subsection (1) - (a) he is not entitled, while the default continues, to enforce the agreement”. The Pursuers did supply a photocopy of an application form for a CREDIT CARD account but that application form that did not comply with s.60 or s.61 of the Consumer Credit Act 1974, or satisfy the requirements of s.78(1) of the same Act. The Defender informed to the Pursuers on DATA to inform them of their mistake quoting the relevant statutory instruments, re-iterated the request for the properly executed agreement for the CREDIT CARD, and gave them a further 7 days to respond with the correct information. The letter also informed them if they failed to respond within 7 days the Defender would consider the account to be in dispute and that s.78(6) of the Consumer Credit Act 1974 would be in force. The letter of REMINDER LETTER DATE was not responded to. The agreement is regulated by the Consumer Credit Act 1974 and copy certified account statements would be irrelevant as they do not provide proof of a properly executed and enforceable consumer credit agreement. The Pursuers are called upon to produce the original properly executed agreement for the CREDIT CARD (card number 0123 2345 3456 4567.), and the Terms & Conditions in place at the time of the original execution of the account, the last set of Terms & Conditions in place for the account, and all Terms & Conditions as varied between these two periods. The Pursuers averments are denied except insofar as coinciding herewith. Denied. It is explained that the Pursuers have failed to provide any evidence or documentation of the existence of a properly executed and enforceable credit agreement to substantiate their claim as craved. Denied that the Defender has delayed or refused to make payment. The Defender wrote to the Pursuers on DATE OF REMINDER LETTER making their position clear with reference to the relevant statutory instruments. The Pursuers averments are denied except insofar as coinciding herewith. PLEAS IN LAW The Pursuers, having failed to aver that the agreement exists and is regulated by the Consumer Credit Act 1974, or provide details in their initial writ of the regulated agreement, are in breach of The Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009. Accordingly, the action is incompetent, failing which irrelevant, and the Defender craves that this action should be dismissed. The Pursuers averments are irrelevant et separatim lacking in specification, the action should be dismissed. The Pursuers, having failed to comply with the terms of s.78(1) of the Consumer Credit Act 1974, are not entitled to enforce any agreement themselves by virtue of s.78(6)(a). Accordingly the action should be dismissed. The Pursuers, having failed to comply with the terms of s.60(1), s.61(1) and s.78 of the Consumer Credit Act 1974 and Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), are not entitled to enforce any agreement themselves except by virtue of s.65(1) of the Consumer Credit Act 1974. Further, s.127(3) of the Consumer Credit Act 1974 prohibits enforcement of any agreement by the court under s.65(1) in cases where the agreement does not satisfy s.61(1)(a). For the avoidance of doubt, Section 11 of Schedule 3 of the Consumer Credit Act 2006 states that s.127(3) of the Consumer Credit Act 1974 still applies for improperly executed agreements made before the commencement of Section 15 of the Consumer Credit Act 2006. Accordingly the action should be dismissed. The Pursuers, having failed to demonstrate the steps taken to avoid an unfair relationship between the creditor and debtor as defined by the Consumer Credit Act 2006, are in breach of the unfair relationship terms of this Act. Accordingly the action should be dismissed. The Defender, not being in breach of any properly executed consumer credit agreement should be assoilzied from the conclusion of the writ and declared entitled in expenses. Esto which is denied any sum is due, the sum sued for being excessive, decree should not be granted as craved. in respect whereof Signed: Date: DATE OF DEFENCE YOUR NAME AND ADDRESS Defender

I agree. It can be tempting to "tweak the tiger's tail" when you appear to be in a good position, but my experience has shown me that keeping a low profile is often the better strategy. You can be strong, have great denials, and cutting replies to letters when prompted, but being pro-active just stirs things up when it would be better if they were left alone - let them do the running. A reminder about their failure to comply with your CCA request is certainly in order, but there's no need to say anything about returning the denial slip. They'll know what it means, and if they are daft enough to continue you have your defence

You're in a position here where you're dealing with someone from England who is applying their experience of English law to their replies. You can use this to your advantage. For instance, we had dealings with an company where the solicitor was based in England and who thought putting "without prejudice" on their letters meant none of the contents of their letters could be put before the court ....little did they understand how different the interpretation is in Scotland compared to England. They wrote extremely freely in their letters and got a shock when we started using the comments in their letters against them when they decided to attempt court action. If you're able to, take advantage of their relative ignorance of the Scottish system which , in my eyes, is a much fairer system with higher burdens of proof (just my opinion). From what maroondevo52 says it seems they are completely ignorant of the Scottish process. It is probably a good thing if you have knowledge that they don't. Good luck in your fight.

If it's Bank of Scotland then I wouldn't be surprised if they can't find your agreement. I have personal experience of BofS credit card with a large balance where they have admitted they don't have/can't find any paperwork in response to an s78 request. Despite being in a similar situation with a number of cards, this is the only company who have ever admitted that they don't have an agreement. The agreement has never been produced to date and I don't believe it ever will. The card was originally a Marbles card and I don't think they ever got the paperwork when they took over that card - probably wasn't an issue for them at that time which I'm sure they regret now. They tried hard for a couple of months to get payment, then sent 2 DCA's after the money, but their existing non-compliance with an s78 request is an absolute defence (until/unless they remedy it). It's been several years since I heard anything and the debt becomes statute barred early next year.

For every CCA request I've made I just get my partner to sign my name on the request letter in her hand. The signature has been nothing like my own but it hasn't stopped anyone sending whatever paperwork they can drag up, and if anything dodgy ever did occur with the signature then it would be easy to show it wasn't mine.

One thing to remember about this process is their solicitors are much better practiced at this than you are and they don't have as much to lose as you. Their paperwork and responses will exude confidence to wear you down mentally so you feel like giving up. Even when their backs are seriously on the ropes and they know they have little chance of winning, their tone won't change. I'm not clear at what stage you're at. Are you still at the period of adjustments or are you much further on? Just because they say it, doesn't make it so. It's up the the Sheriff to decide, and you have a strong point, but whether it would be fatal to their whole case I don't know. I think the ultimate defence for you isn't going to come from the assignation of the debt - if they've got it wrong this time, they could remedy it later - so you haven't got rid of them. You need to focus on what is relevant and what will protect you. Going on about what is fair - or not - doesn't wash with the judges. You didn't receive an assignation - so what? What law can you come up with to show that by not providing you with proper notice they have no right to pursue the case against you now? You need case law and statute to quote and use, not "it's not fair", "how can they?". Harsh, but this is court, and pleading fairness will get you nowhere except joining the list of those with judgements against them. I'd say focus on whether there is an enforceable debt in the first place. From the paperwork they've sent so far (that you've mentioned) I'd say they haven't even begun to prove their case, but you need a strong focus on the law and absolute requirements of CCA 1974 as ammended to put together a robust defence. If you really don't understand the CCA, it's requirements, and the law, then it will be very difficult for you to defend even if you have a strong case. In situations like this you NEED a solicitor on your side - even if it's just to provide some advice while you defend yourself. To defend yourself you need to immerse yourself in everything to do with the CCA and Scottish Law and use the solicitor to guide you. In many ways Scottish Law is much fairer, more strict, and less prone to the sort of nonsense you now read about happening in English Courts reagarding things like reconstituted agreements masquerading as acceptable substitutes for the real thing, or signed applications being agreements, but you have to know how to use and apply it. Sheriffs are unlikely to really or truly understand the intricacies of CCA 1974 and you may need to teach them, but one thing they will absolutely understand is contracts,and if you can frame your defence in terms of contracts and whether one exists or not, you'll be making it easier for the Sheriff to understand your arguments and side with you. Have you tried your home insurance? Do you have legal cover? My insurance company paid for my defence in a credit card dispute regarding whether the CC company had complied with s78. They paid for initial review, review by a consumer specialist Advocate (there's only 1 in Scotland who does this I believe), and for my solicitor throughout the case. My case isn't subject to a gagging order because they didn't ask for it and we won. I think, from what you've said, you have a strong "s78 not complied with" and they haven't done enough to prove that you own them ANY money. This could be chanded in a flash depending upon whether you did receive another document to sign as per post 43. One final thing to think about. MBNA will probably have sold on your debt with a proviso that they don't want to be bothered about it. If this goes to proof you need to have questioned enough of their case where it would require someone from MBNA to attend. The reason for this are: 1. The won't want to send someone all the way up to Inverness 2. If the amount doesn't justify it then they almost definitely won't 3. MBNA will have told the owner of the debt that they are on their own. Put simply, MBNA are unlikely to help the current debt owner at all, so if their case depends upon representatives from MBNA being there or even doing more work than they have already done (e.g. paperwork) then there's a good chance they won't come...scuppering the pursuers case for them. This isn't foolproof but I'd put money on that they will attempt to settle in these circumstances and it's up to you to hold out. Being solicitors, even when they know they have no chance, their nature (with you as a litigant in person) will demand they get something from you....even it it's just a pound. Tell them no.

If it's any consolation I'm aware of a recent MBNA case in Scotland where there was an online application and the arguement was based around whether a tick was sufficient substitute for a signature. Although the outcome is subject to a confidentiality agreement I'm aware of the arguements used in defence and the defendant did seem to be happy. I have some notes here, but please take them as they are. They might be relevant to your case and you may be able to extract some information or argument that might be useful to you, but you'd be best to consult a solicitor. 1. Their right to sue depends on a valid assignation – therefore it must be founded upon. Laws of Scotland confirm this – assignation must take place for the debt to be legally theirs topursue. 2. The assignation MUSTbe intimated – means nothing until intimated to you. 3. Both must exist – why intimate unless assignation took place – yet the document they have produced does not contain the correct address because they didn't know where you were by their own admission 4. They might suggest that that the agreement lodged in process does not matter because the fact that it is anonline agreement means there is no document. The electronic agreement, having been founded upon, must be lodged in process either in its original electronicform or in some suitable alternative. The Pursuers themselves, having lodged aprinted copy in process, have chosen the latter, therefore this form would haveto be complete and true to the original agreement as per 127(3) for thepurposes of enforcement, and also for Rule 21.1 of OCR1993. No agreement = no obligation to pay. Musttherefore be an agreement. 5. A bit speculative and circular as an extension of point 4 - they might end up confusing the document vs the agreement.To be a CCA it must comply with the prescribed terms or it cannot be relied upon. It could be that they might end up saying that what they have lodged is NOT the agreement, because the original agreement was in electronic form. This would have been fine if they had chosen to submit a copy of the agreement inelectronic form eg on cd or dvd. However, since they have chosen to provide a printed copy of the electronic agreement both in response to a Section 78 request, and may also present it to court in their Inventory of Productions, they will have founded upon said document and also referred to it for its terms in their pleadings. Given the shortfalls they can't then turn round and say this document is not the agreement.

Misunderstood the original post about providing payment details directly to the supplier who then chose Paypal as the company to process that payment without your knowledge of who would process the payment. Just ignore my post. I understand the moral arguement, but I don't know the legal one in this case.

I can't offer you any direct advice about the best solution, but I'm glad you've now taken the first steps in attempting to put a line under it. If it's affecting your husbands health then that must be the first consideration, and in those circumstances sometimes you need to make a decision about what will sort things out the quickest rather than what would be your ideal preference. I'm sure other's will be along to give you better advice or else point you in the direction where you can find it. I wish you all the best, and good health in the future.

This might have something to do with the number of older card numbers they keep on their system. If the card only changed once or twice then all the numbers might still be there. I've seen it with DSAR requests to MBNA when the request is made with a particular card number. You may get all the comms logs because that's part of the "account" information held (assuming they can find your account), but you'll probably only receive statements for that particular card number and maybe the one immediately preceeding it, but if your card number has changed a lot you won't get all the statements going back to the start of the account unless you list all your card numbers. I've seen this happen with several accounts although that is probably only anecdotal evidence given the millions of accounts they must have.

MBNA only started using the credit card number (12 dgits) for the account numbers around June 2004, which replaced their 10-digit account number. Don't know the reason for it. They also only seem to keep the last 3 credit card numbers on their system, so if your card number has changed 4 or more times, they usually find it difficult to find your records if you quote an older number....which may explain what has happened in your case.

Oh, for goodness sake. The people are here to try to help, but if you take that attitude with them you'll get nowhere. If you think they've been harsh just wait until the period of adjustments or until you get into court if the pursuers are in any way competent (not likely, but possible). Swallow your pride, take a deep breath, and decide whether you want some help or not. No-one can give you complete answers without seeing the wording of their condescendence. They also can't make up the words on your pleas-in-law because only you have the necessary details. There's a lot happened from what you've said before, now you need to get it straight and onto paper in a way that makes sense, can be understood, and has the law behind it. The reply have a particular format. I've put together a sort-of layout but it needs polished and the words must be your own. It should also be double-spaced. Your answers to their condescendence depend on exactly what they say. You either deny, agree, or explain. Approx layout. SHERIFFDOM OF... COURT REF. NO:- DEFENCES in causa NBAM ADDRESS Pursuers Against ME ADDRESS Defender ANSWERS TO CONDESCENDENCE 1. The averments relating to the Defender and jurisdiction are admitted. Quoad ultra not known and not admitted. (i.e. I don't know anything else and I'm not admitting to it) 2. It is explained that a. The Pursuers have not provided any documentation to substantiate their claim as craved. b. The pursuers are idiots who haven't got a clue The Pursuer’s averments are denied except insofar as coinciding herewith. 3. Denied. It is explained blah blah 4. Dened, agreed, or it is explained that 5. Denied that the Defender has delayed or refused to make payment. The defender did this...The Pursuers averments are denied except insofar as coinciding herewith PLEAS-IN-LAW FOR THE DEFENDERS 1. e.g. The Pursuers, having failed to aver that the agreement exists and is regulated by the Consumer Credit Act 1974, are in breach of The Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009. Accordingly, the action is incompetent, failing which irrelevant, and the Defender craves that this action should be dismissed. 2. Pursuers averments are irrelevant et separatim lacking in specification, the action should be dismissed 3. The Pursuers, having failed to comply with the terms of s.60(1), s.61(1) and s.78 of the Consumer Credit Act 1974 etc etc. Accordingly the action should be dismissed. 4. The Defender......reason....should be assoilzied from the conclusion of the writ and declared entitled in expenses. 5. The Defender....reason....decree should not be granted as craved. 6. Anything else in respect whereof Signed: Date: Your Name Your Address Defender The other thing to watch with your Pleas is that you don't provide them with ammunition. You're defending against their condescendence as that is their "case". Your pleas are the legal reasons why they can't win their case. Don't bring in things that are irrelevant unless they will really help you. Remember, it's a "period of adjustments" so don't give away everything now, you just need to provide some reason why they can't win based on their current condescendence, not every reason under the sun that you can think of. The sheriff does not see what is said during this process. There is no "instant decision". You pleas are also asking for something to happen or for the sheriff to do something e.g. the case to be dismissed, expenses provided, for the claim to be asoilized, or whatever. Don't get the reason for your pleas and answers to condescendence mixed up.

Well, it certainly got a reaction, but I'm glad to say that it's a reaction that I'm pleased to see. My worry - for you - was that you were over-concerned about things that won't help you in your court case. I'm glad I was wrong and your reply seems like you've got it in hand and are making a distinction between them. They may well be, and if they are they're either in possession of facts that you're not aware of or else they are worrying about what the heck they've done to unleash your fury. I'd love to be a fly on the wall. You're completely correct, but my mind is that while these are important issues that may need to be addressed, they are not a legal defence and that makes them largely irrelevant at this point. That may very well be the case when it comes to debtors. Defending an action is expensive (unaffordable to the average person) when you need professional help, and being is debt is still embarrassing to a lot of people. In the past people often didn't defend and lost by default. Sites like this give you the tools to fight back and make it an almost equal fight if you're determined enough, able to assimilate facts and can articulate these on paper and in speaking. I called a number of solicitors and one of them told me that ordinary actions can cost in the region of £20,000 to defend and you'll never get that back even if you win. Companies with deep pockets know it's an uneven fight where the average person can't get the funds for a professional defence when the person knows they won't get all that money back. That automatically discourages anyone from defending, and as that solicitor said, unless you're very rich or very poor, justice isn't always being served. But, and it's an important but, so what? Change the broad issue later, defend yourself now because it's your defence that matters at this time. You're not going to change the law, prompt an OFT investigation, or get Trading Standards to prosecute them on the basis of a single complaint. It will be your complaint added to many others that will prompt action, and that action is unlikely to start before your court case and certainly won't finish before your case ends, so what's the point in bothering about it just now. The imminent court case is what counts at the moment. I'm really not out to argue with you. I'm on your side. Although I'm new to being pursued, I've been involved in a few legal wranglings over time. What I've been frustrated with in some of the things I've seen is when there's been a lack of focus. Rather than concentrate on the things that are going to help people win, they take a sort of moral stance (it isn't fair!) and a blanket approach covering everything whether strictly relevant or not. The result is a mish-mash defence that fails to focus in on what counts and comes over as a disorganized mess where the hope seems to be that if they throw enough mud some of it will stick or else it becomes so obscure that no-one can reach a judgement. In court, the sheriff is smarter than that and has little time for random ramblings. I've seem the symptoms, and I was worrying you might be headed down that route. I'm delighted that you aren't. As for my perspective, I'll say this. Yes the CPUTR is statute, and yes NRAM should adhere to, but it's statute that you cannot prosecute under and as such it's not immediately relevant to your circumstances. You can, and obviously are, going to report to the relevant authorities, and may even be able to stir-up some publicity that embarrasses the OFT into quick action, but it isn't going to make a jot of difference to your defence and I was worried that you were spending time on stuff that can't help you win in court right now. Maybe you are remarkably prescient. Yes, governed by all sorts of rules and regulations. Easily remedied is easy to say, sometimes not so eay to do. You'll need to see what they come up with. Yes. There's probably/maybe/possibly an agreement for something floating around, but is it relevant? Competent? Maybe not, failing so, irrelevant. You've got lots of good stuff there and you rightly question whether there's even an agreement at all, never mind a properly executed on, and THEN you have a whole pile of other questions. Put precisely, I can see them having a problem dealing with this. Remember what I said at the start, the solicitors will have started action on the instruction of their client. They probably won't have any paperwork in their possession at this time. It won't be until you lodge your NID then lodge your defence that they will start to gather their evidence. That's when they'll know what their situation is. They are supposed to be accurate, but that's what your "Answers to Condescendence" and "Pleas in Law" will be about in your initial defence. You can tear them to bit here if you want, or introduce the dressing down at some other period. The writ I received said something along the lines of "he owes us money we lent him, we want it back". It was no more complicated than that. No avertments as to the existence of an agreement, no account number, no mention of regulated agreements, no mention of dispute, no mention of years of legal correspondence. Oh, they did mention they had statements! How far they get on a poor condescendence it up to you and is anyone's guess. My own pursuers rubbish condescendence is why many months later we're still not past the adjustments stage but it didn't stop the case being rubber-stamped for progress and I can never forget that they would have won by default if I hadn't defended. You might be mixing up the failure to comply with s78 for "information purposes" with the "proof of purpose" which they will need to provide if they want to win. The solicitors in Scotland are clear on a couple of things from what I can gather. 1. A application form is not an agreement 2. The original must be produced in court These requirements would likely be over-ridden or brushed aside in England where a "True Copy" of an agreement now seems to be sufficient to prove a properly executed agreement. It can't happen so easily in Scotland I think. There seems to be subtleties and twists in Scottish law regarding the formation of contracts (even if regulated by CCA 1974) that are in the defendants favour in case like yours and mine. It may very well be an abuse of process (I've never said it wasn't - I said it was a nonsense to your current situation i.e. defending the action first) but is that your defence? You may be able to prove it is, but only because you're able to defend on all the relevant points. That only comes when you take apart every bit of their prosecution regarding the competency of their initial writ, its relevancy, the agreement (if any), its execution, whether monies changed hands, whether they can rely upon a 6-year old agreement to provide funds, and whether any of it is enforceable. Remember, they need to prove their case. You need to be focussed on what they will need to do to prove their case as that will provide clues on where your defence needs to be strongest. IF you don't defend competently, you lose, and if you lose they can't have abused the court. You can argue subtleties of this, but it's a fact of life. It may be unfair, it may be immoral, but what are you trying to do at this particular moment - defend yourself against the claim, or lay down a moral structure that must be adhered to in situations that follow you i.e. after you've won or lost? If it was me, I know I'd be putting aside everything else in an effort to defend myself and leave the other stuff till later. That's why I was thinking you needed to focus on what's important to your defence because it's from that that everything else can flow...their abuse of process, their abuse of CPUTR and consumer protection legislation, and their dreadful behaviour toward you for additional sympathy from the Sheriff and hopefully a dressing down for them....but you need to win the defence first and that's the warning I was trying to give. I'm delighted to know you're focussed and in control of what you are doing.

You can't prosecute under the CPUTR so it is of no direct use to your defence. Neither is the OFT Guidelines because they are...erm....guidelines. They might be used to show a blatant disregard of consumer protection laws, but the unfairness of it all can't be used to protect you. You need to defend the case in LAW first, then you might get a chance show just how bad they have been and perhaps trading standards or the OFT will take up the case for you and prosecute them for their bad behaviour. That's what I said earlier about keeping a focus on what's important. We know they've treated you badly, we know they've run roughshod over legislation and guidelines designed to protect the consumer, but that will not be your saviour in court. Stop talking about how badly you've been treated, and start thinking about your defence. You're running off on tangents and getting upset about things that are not important at this time. STOP. You might be able to use all this stuff to bolster your defence and show the judge just how badly they have acted and what misery they've put you through once you've won the legal case, but if you don't have a legal defence you will lose. The CPUTR is NOT your defence. In amongst all this "noise" you seem to have a very good defence in the making and probably very good prospects. The fact that they haven't complied with your S78 request is a total defence (that they could possibly easily remedy...in theory). Other things like statements not matching, letters saying there is no debt then suddenly there is, their reliance on 6 year old agreement to provide funds - these are all things that are relevant and it's getting all that clear and absolute that counts. While the judge may sympathise with your feelings, unless you have a defence you will lose and all the gnashing of teeth and "abuse of process", quoting of CPUTR, all the talk of vexatious action is nonsense. Sorry to be blunt, but you need to put your feelings aside and focus on what matters to the LEGAL side of your case first. Everything else is secondary. Cases are won on technicalities of law and you must be in absolute control of your legal defence if you're going to defend yourself. I'll say it again LEGAL LEGAL LEGAL LEGAL LEGAL and in tiny writing "feelings". It looks to me like your getting your knickers in a twist and so busy running around saying "it's all so unfair, it's an abuse of process, the courts are colluding, the sky is falling in" that you're not getting down to the nitty-gritty of what is going to save you, and humiliate them, in court. This is what it's about - they say you owe them money, you say they don't. Can they prove you owe them money? Can you cast enough doubt on their claim? Can you show non-compliance with the consumer credit act - s78, not properly executed, is there an agreement at all? Can you show money was never paid to you? Can you prove that they can't lend you money based on a 6-year old application? Can you show all liabilities were discharged at some point. These are the type of things you must concentrate on. Everything else you mention that is not specifically related to this is probably a waste of your breath. I feel like a broken record, but it seems to me you're more focussed on the emotional aspect and haven't put a strong enough defence together yet. You need to get that straight in your head and gather what evidence you can in the short time you have available to do this e.g. apply for bank statements from all banks you dealt with at the relevant time (there can't be THAT many). You're wasting your precious time reading and then quoting legislation to us that can do nothing to protect you, and you're prattling on about how unfair it all is rather than spending the time concentrating on what is going to save you in court first. I'm not unsympathetic to your plight...I know how hard it is....but I just see you getting all worked up about things that are fundamentally irrelevant. I don't care if they shouldn't be in court at all and didn't follow "nicely nicely" procedures. I couldn't care less that the Scottish Court System is being abused, colluding with, or being used as a blunt instrument, because you know what? THEY'VE TAKEN YOU TO COURT, and you'd better get your defence in place. You can care and get all emotive about it once you've won the legal part of your argument, but until you do that, put it aside. I appreciate I won't win any friends by saying what I have, but you need to win this and you probably can win it from the relevant stuff you have mentioned. Just get on with what's important.

Hi GLW. Have you made any progress in this matter or lodged your Notice of Intention to Defend? Why not do that - even a blanket "Everything is denied" then ask for the case to be sisted while you try to get more information - even if you need to pay for a solicitor to do it for you. Unless it is objected to - unlikely unless they are sure they have a strong case - the Sist will give you a bit of time to put your thoughts in order and to hunt for any paperwork that will help. It's hard, but try not to let it get you down. I received my initial writ last year, and we still haven't got past the adjustments period yet. As they say, the wheels of justice move slowly so take advantage and give yourself the time you need. Don't be railroaded into a timeframe that disadvantages you. I'm certain that in most of these cases people either ignore the paperwork so the pursuers win by default, or they just admit the debt and let "justice" take it's course. The ones that are defended strongly rarely reach a conclusion in court. From what you've said, you seem to have merit to your defence. I'd hate to think they'd got to you and you've given up. Keep us up-to-date.

After reading what I wrote I quickly realized that it's easy to sit back and pontificate when you're not personally involved, and how difficult it can be to focus on what's really important when it seems your world is crashing in around you. That's why things like this site are great, and with the vast experience of people like IdainFife and SFU, they can help to narrow down and focus your efforts on things that matter. I guess it's also why speaking to a solicitor or someone who understands the legislation and some of the arguements can be a help too. When I received my initial writ I called many solicitors, and the attitude of most was "why do you think you don't owe the money?". Few had heard of the CCA 1974, and even fewer had anything more than a cursory knowledge of what it contained. That's why it's important to get third-party advice, but make sure the advice you get is from people who understand what goes on when it comes to debt. My personal opinion is that now that action has been taken, only point 1 is relevant and that's where you should be spending your time deciding on what you want to do next. It shouldn't come as a surprise. Most people involved in the debt industry don't care about the human element. They just want their money and many rely upon the ignorance of the average consumer to play fast and loose with guidelines and legislation. I don't condone it in any way, and I'd like to see more forceful regulation, but you have different things to focus on now. It's not the time for a general rant or discussion of their tactics, immorality, or bad behaviour. You have court action heading your way and you need to deal with the things that will protect you from that. You can leave the crusading for another day unless that will make up a large part of your defence. No, I personally don't think the Scottish Court system is condoning it, however, just as you have the right to defend yourself anyone has the right to initiate action at any time. The court is not a moral arbitrator, but a court of law and the pursuer has to make their case. Just because someone starts action it doesn't mean they will be succesful or even have a belief they will be succesful. Even if the action is vexatious, can you prove it? Do you know the mind of your pursuers? The Scottish court system allows for a period of adjustments, and that's where the pursuer will need to have better arguements than you. If they can make a case you can't then claim it was vexatious. If I had any criticism of the Scottish court it would be the inability to claim all your expenses even if you win. That seems grossly unfair if the action was potentially vexatious or speculative (in my mind) as it would make companies less likely to take action until they knew the full details. On the other hand, give the amount of court action that goes on in England regarding consumer debts and the relative sparsity of those in Scotland, I'd say the Scottish process is less likely to be succesful with the flimsy evidence that seems to pass as proof in the English court system. You're completely correct, but can you prove it? By all means, pursue any avenue you think will help, but please don't get distracted by things that won't help you NOW. That's the horrible thing about them. They have no interest in the person behind the debt. They want their money, they follow a path, and it seems that the whole process is largely automated and unthinking up to a point. As you've said, there is little chance of them getting what they want even it they did win, but that doesn't stop the process being followed. It's disgusting and it's de-humanising but knowing that isn't going to solve your immediate problem. Without details, I don't think I could say. The only thing I can point out is that unless you defend then you can't avoid them at all. You can make an application pay in installments but from what I understand in Scottish Courts this application to pay isn't likely to be granted if the period of repayment is extensive. I've heard that even 6 months is regarded as too long to repay...I hope I am wrong. Then again, if you have nothing to lose then they have nothing to get, but only you can decide where you stand on this spectrum. As IdaInFife suggested, have you checked you home insurance policy for legal cover? It may turn out in the end that you won't be covered, but you might get a lot of mileage out of solicitors acting for the insurance company while they decide whether you are covered or not. There are some very knowledgeable people on this forum. SFU and IdaInFife who will be able help you. My knowledge is much smaller but I can offer a perspective because I'm going through the mill at the moment and I have some first-hand experience of what happens and how it feels. The only thing to remember is that they can offer advice, but they can't make up your mind for you..only you can do that. I've been lucky to be able to spend time with solicitors and an advocate and I've been able to soak up some additional information from them about how the system works and what cc companies and banks try to get away with. I can tell you that their general feeling is that very few institutions have the correct paperwork in place to enforce older agreements. A word I've heard a couple of times in regard to them was "cavalier". They know exactly how these companies operate, and they know what ones have paperwork, what ones destroyed the originals, and although they've defended many cases between them, none of them have ever reached debate or proof...take from that what you will (I couldn't drag the details out of them). It is mad, but it is relatively common. As I said earlier very few cases make it through to proof or debate. The solicitor who started the action will likely have started it without having ANY details about the case. They will go on the word of the bank. If you defend, then the solicitor will start to ask for the paperwork, and during adjustments, if your defence is strong, they will soon realize whether they have a winable case or not. But, at the very beginning, they will know virtually nothing. Since most people don't know what to do (or bury their heads) when they receive the Writ, they will hope for a win by default without ever having to prove they had a case in the first place. If that will help them great. Just don't get distracted from the fact that you have an impending court case and you need to decide what to do.

Can I just re-inforce the statement made by SFU where he said: "But, in any event, the fact that a lender has driven anyone to the terrible position you find yourself in, wont make an account any more/less unenforceable. At the margin it MIGHT influence a court, but I dont see it determining anything. I certainly would not want to rely on it." I know that that when the initial writ lands on your doormat it can cause period of panic but SFU is absolutely correct. It generally doesn't matter how badly they have behaved with yourself or other people, whether they seem to be riding roughshod over legislation designed to protect the consumer, or whether there's a dispute in place or not, because that isn't likely to be your defence. You need to try to put your feelings aside and focus on the things that now matter on a legal basis - the enforceability of the agreeement, whether there is an agreement, what agreement they are referring to, and what defence you will have if any. I'm not condoning their actions in any way - it's certainly worthy of discussion at another time - but that's not relevant at this time and you need to stop spending time worrying about their bad behaviour. What's important for you now is to concentrate on what's going to get you through this in a legal sense. If it's any consellation, I received an initial writ many many months ago. I panicked. I started to doubt the defence I had worked through in my mind. I thought that their case much be very strong or else they wouldn't take things to court. What I've learned in the last few months is that in Scotland the process is much fairer than it seems to be in England (but can be very expensive). It is drawn out and everyones cards are on the table so there are no surprises in court and you have time to prepare. Starting court action is not taken lightly by companies but it is taken partly as a scare tactic - their clients have unlimited fund to take these cases on. Solicitors rarely have all the information to hand from their client when action is raised, and its not until the adjustments process that they start to look at their case more closely. CC companies are scared - I mean REALLY scared - of sites like this and are terrified of losing...if it looks like they will lose, or not definitely win, then they will generally attempt a settlement with a confidentiality agreement. My own solicitor and advocate haven't appeared in court yet, and neither have the pursuers solicitor, they just seem to agree everything in advance and then instruct a local solicitor to attend court for about 5 minutes to get the agreement of the Sheriff...it's a weird system that seems a bit remote and imprersonal at times, but that shouldn't surprise me because it is supposed to be a dispassionate process. You only have to look for examples in Scottish Case Law for cases centering around the consumer credit act to see how few there are, and to realize that's because most are settled at some point usually with a gagging agreement or else abandoned. In my case the action was sisted, the sist was recalled, then another was put in place, a date for an options hearing was set and now the pursuers have requested another delay for some reason. It can take a long time for the process to work through which will give you time to put things in order, so the chances are you have time. I don't know where you are but I can recommend a solicitor if that would be any use to you - initial consultation is usually free. I've also had contact with an Advocate who specialises in Consumer Law who is an excellent resource to have on your side. If you are going to see them, get everything in order first with all your paperwork and outlines, give them a brief verbal outline, and then let them ask you any questions they need to. Keep it quick and short, don't get involved in irrelevant tangents about the behaviour of banks, the FOS, or anything that isn't relevant. Don't waste their time, or yours, on things that don't matter to your defence.