New act dec 2007 (regulated agreements)

[trigot33]

Hi,

Is anyone aware of this new act that was to come into force dec 1st 2009, regarding regulated credit agreements ?

 

I have read somewhere that the act was ``amended`so what does it mean now. Before the amendment, any creditor couldnt raise proceedings without the original agreement being lodged.

 

Please advise. Thank you.

[craigers]

Credit Today online

[craigers]

http://www.opsi.gov.uk/legislation/scotland/ssi2009/pdf/ssi_20090402_en.pdf

[trigot33]

Ok so they dont have to show ,before lodging any action, that an original cca exists, HOWEVER in the course of any action, they are still required by law, to produce the `original signed` agreement to enforce any action. Is this correct ??

[Coactum]

Hi Trigot33, like you was a little confused about this. Note the final paragraph in the explanitory notes "Those provisions were to come into effect on 1 December 2009. This Act of Sederunt amends the aforementioned Act of Sederunt before it comes into force, with the effect that the said requirement is no longer part of that Act of Sederunt when it comes into force."

 

I think that all they need to do is affirm that the agreement exists at the time the writ is served, however, I also think that in the course of the case the original must be lodged as evidence in the action.

 

Can anyone confirm my understanding?

 

Also what happens to actions commenced prior to December 1st that have not yet gone to proof? Does anyone know if these fall under the old rules or the new?

[trigot33]

Well i think before any amendment, there was no way for lenders to lodge an application at all. So basically they were barred from doing anything.

 

Now it means they can, although as u say, they still need to produce the original agreement to win in court. Well its how i understand it. CAN anyone help here please.

[IdaInFife]

yes during any court action you can request a copy of the original agreement

[RHOOD]

hi,

 

Link to Scottish Court forms

 

Ordinary Cause Rules

 

New FORM 03 & O3A

 

rhood

[leothelioncub]

Perhaps we should be filling Kenny McAskill's (is he still our justice minister and not locked up in wembley)and our local MSP's inbox with complaints, after all credit today gave a link to the courts e-mail service "for all those creditors who may be affected". All this will do is encourage creditors to take court action without the original agreement in the hope that people without the knowledge will just pay up without fighting. But we should put in how we feel in our own words and tell him of our own experiences with debt collectors , banks etc and how they behave... I will for one dare him not to pay his credit card for two months and see how often his bank call him per day threatening to take his DVD player and kid's xbox. This act of sedurunt is a total disgrace. (no idea what that means) did pass my latin O grade but that was a long time ago!

[seriously fed up]

This probably seems a pretty lame - not to say stupid - question, but how much influence do we think that the Manchester decision might have in Scotland see either http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-33.html#post2698050 or http://www.consumeractiongroup.co.uk/forum/legal-issues/216538-claim-stayed-due-unenforceable-69.html#post2698064 - or if you are really up for it BOTH

I have been putting in a wee bit of time on both, but remembering the change from the Act of Sederunt that the OC has to "aver" that the agreement exists, what is is that they have to "aver" exists? The original document or a "blue peter job" (here's one we made up earlier)

I realise that an English High Court decision has no direct influence in Scotland and that its only once these decisions are taken at the Supreme Court that they would be authoritative. On the other hand, it is the SAME Act.

[caro]

Whilst I understand that Scottish law is not the same as English, it seems to me unlikely that the interpretation is likely to be different. The Scots can be swayed by English case law, although there may be the opportunity to be a little more maverick if they choose.

 

In the early days of the OFT v banks test case, some cases were still being heard in Scotland, but it varied from one court to another. In the end I believe cists were the norm.

 

At best I think it's still likely to be a sheriff lottery, but that's just a personal opinion.

[Monty2007]

Whilst I understand that Scottish law is not the same as English, it seems to me unlikely that the interpretation is likely to be different. The Scots can be swayed by English case law, although there may be the opportunity to be a little more maverick if they choose.

 

In the early days of the OFT v banks test case, some cases were still being heard in Scotland, but it varied from one court to another. In the end I believe cists were the norm.

 

At best I think it's still likely to be a sheriff lottery, but that's just a personal opinion.

 

Dear Caro

 

I agree with you. A Scottish Sheriff will wish to take each case on its merits and I don't believe that the Manchester case will have substantial meaning up here. In all my cases the cases have never got to litigation so my assumption is that the Pursuers know that they are onto a loser so do not wish to get a precedent against them. If they were 100% sure they were on solid ground they would follow through with a legal debate and proof/PBA.

 

Things may well change and this may be a transition phase, difficult to tell in Scotland.

[seriously fed up]

Hello Monty, how are you?

Basically what you and Caro have posted is pretty close to my own view - its the same Act so one would expect at least much the same interpretations, except that, as an English High Court judgement, it has no direct authority. And of course, it would have to overcome the natural, built-in determination of Scottish law to demonstrate its independence from the law in England! Not sure about you Caro, but I am sure that Monty will know what I mean

I appreciate that in the same way as England has its own Judge Lottery, Scotland will have its Sheriff Lottery. But its interesting that Monty has found that all his cases have been withdrawn without getting to court (and my own record - with Monty's considerable help - is 100% as well - though that was only 1!). Does this suggest that Sheriff Lottery appears in court less often than Judge Lottery?

Also, Monty, I was a wee bit puzzled by what you were suggesting by transition stage, and why?

[ajs444]

After reading the OFT guidance on CCA's, I wonder what happens now?

 

Scottish Courts asking for the signed original and OFT saying anything that looks like an original will do, and according to te OFT paper their version is UK wide.

[seriously fed up]

I think the new regulation actually is that the lender must "aver that the agreement exists". This aspect of the OFT paper, I THINK, relates to a s78 request rather than as Waksman put it "the proof purpose". So, I dont really think this will change very much. In reply to a s78, they will send whatever they want (because they can). They will, I suspect, aver whatever they have to in the hope that the mere threat of action will influence us to give up. But if it doesnt then they will probably just withdraw the action before it does get to a Sheriff