Court appearance

[norriel]

Hi, have a court date of the 18/6/10 at Livingston Sheriff Court, would like a Mckenzie or a quick chat with someone who as been down the Scottish Court route,---- Bank are trying to put a Decree against me and I've have written this for my deffence but not yet sent it to the solicitor pursuing me. Please let me know what think as there is no NOTICE OF CONDITIONAL ACCEPTANCE is Scots Law.

CONDITIONAL ACCEPTANCE

Notice to Agent is Notice to Principal
Notice to Principal is Notice to Agent
The undersigned is I as I is the undersigned

Dear Ms ------,

Your reference

Thank you for your correspondence dated the 19th March 2010.
I hereby accept conditionally the alleged debt and will use my very best endeavours to settle and close the account in the most expedient manner, upon receipt of the following:

1. The original promissory note, front and back, associated with the loan.
2. All bookkeeping entries associated with the loan.
3. The deed of trust associated with the loan.
4. The insurance policy on the borrower’s promissory note associated with the loan.
5. The call reports for the period covering the loan.
6. The deposit slip for the deposit of the borrower’s promissory note associated with the loan
7. The order authorising the withdrawal of funds from the borrower’s promissory note deposit account.
8. The account number from which the money came to fund the loan to the borrower
9. Any allonge, front and back, affixed to the borrower’s promissory note for endorsements.
10. Verification that the borrower’s promissory was a free gift to the lender from the borrower.
11. The name and mailing location of the current holder of the promissory note.
12. The name and mailing location of the lender’s chartered accountant and auditor for the period covering the loan.

Please deliver these reasonably requested items within 7 days of your receipt of this notice at the mailing location provided herein. Failure to do so will comprise the tacit procuration of the --- BANK LIMITED agreement that it is unable to verify and validate the alleged loan.

Without malice, mischief, ill will, vexation or frivolity, in sincerity and honour,



---- of the family -------

All Rights Reserved- Without Prejudice-Without Recourse-Non-Assumpsit
Errors & Omissions Excepted

[brindleskye]

Hi Norriel,

A notice of conditional acceptance does exist in Scots Law and as far as i'm aware it is written into statute. Your problem might be under which jurisdiction the original agreement was made.

Assuming this is a mortgage contract it may well have been made under English Law in which case you should be OK to proceed as planned. Please also be aware that recent case-law suggests that the avoidance of debt on the basis of missing or incorrect paperwork might not work. However you may well find that your actions can only stop the lander enforcing any contractual obligations.

If this is a mortgage then please let me know. I am a former financial advisor (I left on ethical grounds) and there are certain 'conditions' in a mortgage agreement that the banks can use to get around the debt issue.

Steve

[norriel]

Hi Steve, thanks for your input, no its not a morgage it was a Bank loan, I've managed to tackle RBS and Clydesdale quiet successfully but HFC which is a sub of HSBC seem to want blood. They sent me a photocopy of the loan agreement but not the orginial I believe that the Scottish Parliment pass a bill in Dec 2009 that all docs had to be orginials. Let me know what think.

Regards Norriel

[Dipsy]

The courts can proceed with a copy of contract IF you allow them too. If they hold up a copy and ask "is this you signature on this photocopy? and you answer yes they will press ahead with the case. BUT remember your signature is valid ONLY in wet ink. Its the power of you holding a pen and signing which gives energy to a document. A copy is a digital forgery. Its up to you to say "NO that is NOT my signature".

Scotland still operates under common law same as the rest of the common wealth and BTW Scotland issued a Claim of Right for Independence so if they can do it so can you.

That said its all a lucky dip the courts do whatever they can get away with regardless of what is real law or not. It simply not a case of what is real law its about what you can do to ENFORCE your claim. If they want to issue a CCJ regardless if you turn up or not there really is not much you can do about it and the courts are controlled by the banks. If you go all the way and put liens on everyone you will be classified as a Domestic Terrorist and probably end of with a SWAT visit round your house and this is what happens if you piss off a judge too much.

[brindleskye]

Hi Steve, thanks for your input, no its not a morgage it was a Bank loan, I've managed to tackle RBS and Clydesdale quiet successfully but HFC which is a sub of HSBC seem to want blood. They sent me a photocopy of the loan agreement but not the orginial I believe that the Scottish Parliment pass a bill in Dec 2009 that all docs had to be orginials. Let me know what think.

Regards Norriel

Hi Norriel,

I'm not sure about any bills passed by the Scottish Government; however, it is immaterial because the loan would be governed by the law of England. The bank are only legally required to provide a reconstituted document and not the original.

You could go down the 'prove that it is my signature' route but you might come unstuck. You would have to argue that as it is 'not' your signature then you didn't apply for the loan; however, they will be able to prove very easily that the money was paid into your bank account in which case as you have probably spent the money you would have to return it. Not to do so is is theft.

The Theft Act 1968 has this to say:

1. Basic definition of theft

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and ‘theft’ and ‘steal’ shall be construed accordingly.

(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

(3) The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).

2. ‘Dishonestly’

(1) A person’s appropriation of property belonging to another is not to be regarded as dishonest-

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the
property belongs cannot be discovered by taking reasonable steps.

(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

3. ‘Appropriates’

(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

4. ‘Property’

(1) ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.

Hopefully this will help.

[norriel]

Hi, thanks again guys, what if I say I need the orginal doc because I believe there has been a fraud commited, would they just completely flip at that, and the other 10 docs I have ask for will they just ignore that request because they have a signed photocopy.

Also have printed out below my Ref to orginal docs in Scotland.

Scottish court change ´threatens recovery´

Creditors and debt buyers will be unable to recover debts through the Scottish courts unless they have copies of regulated agreements, under new rules.

Experts are calling on those who use the Scottish courts to send representation to the Sheriff Court Rules Council, which initiated the change to the court rules. The change is due to be implemented on 1 December. From then, court actions regulated by the Consumer Credit Act 1974 will require a copy of the regulated agreement which will have to be attached to the writ or summons.

The council´s secretariat has told solicitors that individual sheriffs will take their own view as to what constitutes a copy and they may require a photocopy of the agreement rather than a ´reconstituted copy´. S-------- managing partner of Y--- +Solicitors, said this is surprising as creditors are usually required to provide ´true copies´. "A true copy does not mean an exact copy and there is case law to support this," he said.

The impact on lenders and debt purchasers could be significant as many financial institutions are only able to provide a ´reconstituted copy´ - repopulating a template from computer records. They are bound to litigate in the debtor´s domicile and so would not be able to recover those debts.

Thanks again for your help.
Norriel.

[norriel]

Hi, was just thinking, on my original post I was going to send this Condition of Acceptance to the solicitor (Not a Notice) would he therfore not have go back to the bank the get the requested paper work prior to the hearing. ? or am I completely barking up the wrong tree.

Norriel.

[brindleskye]

Hi, thanks again guys, what if I say I need the orginal doc because I believe there has been a fraud commited, would they just completely flip at that, and the other 10 docs I have ask for will they just ignore that request because they have a signed photocopy.

Hi Norriel,

I've used the very same argument myself and prevented a debt being enforced but only because I knew that there was a miss-match in information between an application form and a contractural condition. In this instance a statement of fact entered on an application form meant that a condition on the subsequent contract could not be fulfilled which rendered the contract unfair.

In your scenario the bank can send you a photocopy of the original document which will show the form in it's entirety, so I am at a loss to understand how you hope to suggest to a court that a fraud has been committed. I'm not sure how long you have had this loan but the point that you are missing here is the fact that you received and spent the money. If you argue that the loan was made fraudulently then you will still have to return the money. You could argue that no interest is owed on the debt as you didn't ask for the money but you still have to return the capital. As i've mentioned above, if you take something that is not yours and spend it or give it away then you are depriving the rightful owner of his or her property, and that is a criminal offence under common law.

I'm not sure how much time you have but perhaps you might try the following:

1. Ask for copies of every letter and document in your file. In particular you should ask for a copy of the agreement, a copy of the terms and conditions that applied at the time, and copies of any letters that were sent to you directly after the loan was taken out; particularly those that explained the interest payments and details of the cancellation period and when it started.

2. Think about the circumstances at the time the loan was taken out; did the bank act in YOUR best interest by providing the loan. Did they ask all the relevant questions regarding affordability, did they ask for a list of all your outgoings, did they ask for prove of income, and did they CONFIRM to you that the loan was affordable.

Once you have this you may find it more beneficial to argue that the loan was unnafordable and that the lender acted against your best interests by providing the loan. You may still have to pay it all back but it stregthens the argument for a sensible repayment schedule (about £5 per week).

Also have printed out below my Ref to orginal docs in Scotland.

Scottish court change ´threatens recovery´.......provide ´true copies´. "A true copy does not mean an exact copy and there is case law to support this," he said.

[/quote]

Under the Financial Services Act a 'True Copy' means just that; it is a copy of an original document across which is written "Certified True Copy of An Original Document", and the name of the person who made the copy, the name of the company and the date.

Steve

[norriel]

Hi Steve, thanks again for your help, I think I'll hold my hands up on this one.
Regards, Norrie l

[tomrush]

That implies that the bank didn't magic the money out of the aether when the agreement was signed. These banks do NOT field their own money to give out loans and the like - there can be no loss when they never brought anything to the table in the first place.