Court tomorrow - please help?

versace1888

Hi,

Looking for some URGENT advise please if anyone can help. I will cut a very long story short.

Basically my husband is due in court tomorrow for the 3rd time against PRA group who have purchased an old debt from MBNA. We fell into financial difficulties a while back and the last payment made to the account was in 2012. PRA have purchased the debt and been harassing my husband since.

We have been to court twice and both time my husband argued that the debt was extinguished. The first time they asked for extra time to investigate. The second time they stated that the debt was enforceable by england as thats where mbna were based. We argued that we were protected by scottish law. Again, they asked for extra time and the judge basically asked them to prove that the agreement was under english law.

since then, my husband has spoken with mbna over the phone who has confirmed that is is governed by the country you live in, which would mean the debt is extinguished as we live in scotland. outwith this, mbna changed the terms of the credit agreement 8 times and never sent any updated terms to my husband, which they have told him by law they need to do.

We contacted pra's solicitor last week advising that we have confirmation from mbna that the agreement was subject to scottish law and he has contacted my husband saying he will be penalised in court tomorrow because he hasnt supplied this information 14 days before the court session. is this true? we are clearly not legal professionals so we are at a loss as to wether this may be scare tactics or not?

We are now due in court tomorrow morning, and pra solicitor has contacted us saying it's in both our best interests to cancel court tomorrow and give them 56 days so they can liaise with mbna and giving pra time to investigate further or build their case, whatever way you want to look at it.

my husband advised the solicitor he would need to consider it and would get back to him. since then the solicitor has actually phoned my husbands work - which he has no right to do to ask him how he's proceeding tomorrow.

can anyone offer some advise please as to wether you think we should go to court tomorrow? what do we do? help!

do you think it sounds like they are panicking?

thanks.

tacpot12

Sorry, I don't know enough to be able to advise you, but the following might be of use:

https://www.scottishlegal.com/article/blog-can-an-english-clause-oust-scots-law-rights-in-a-consumer-contract

It seems to be saying, if I have understood it correctly, that your husband may well have agreed to the contract being governed by English law when he accepted it, but regardless of that he is additionally protected by the consumer protections that apply in Scotland. So if he can show that the debt is extinguished in Scotland and that this is as a result of a Scottish consumer protection, then the article might provide the basis to show that the debt cannot be recovered.

Hope this helps.

pramsay13

I'm no expert, but if you have a date for court I think you should attend.
Take all documents with you and inform the court that you are being harassed.

sourcrates

What are you actually in court for tomorrow ?

Is it to decide the case, if so, they may not turn up, and you win by default.

A lot of the time they just don’t bother if there are questions over enforceability.

I would definitely go if it were me.

Just_Di

versace1888 wrote: »

my husband is due in court tomorrow for the 3rd time against PRA group who have purchased an old debt from MBNA.
. . . . We have been to court twice and both time my husband argued that the debt was extinguished. The first time they asked for extra time to investigate. The second time they stated that the debt was enforceable by england as thats where mbna were based. We argued that we were protected by scottish law. Again, they asked for extra time and the judge basically asked them to prove that the agreement was under english law.

. . . . We contacted pra's solicitor last week advising that we have confirmation from mbna that the agreement was subject to scottish law and he has contacted my husband saying he will be penalised in court tomorrow because he hasnt supplied this information 14 days before the court session. is this true? we are clearly not legal professionals so we are at a loss as to wether this may be scare tactics or not?

We are now due in court tomorrow morning, and pra solicitor has contacted us saying it's in both our best interests to cancel court tomorrow and give them 56 days so they can liaise with mbna and giving pra time to investigate further or build their case

From what you say the Hearing is in a Scottish court tomorrow where there may be jurisdiction issues.

The proceedings have been adjourned twice by a Judge/Sheriff.

The solicitors for PRA are asking you to consent to another adjournment (continuance).

I can't say whether that's wise (for you to consent to an adjournment or not) but you need to attend the Hearing and decide whether you want to ask the court to dismiss PRA's claim (jurisdiction issues) or adjourn (continuance) to allow you to seek legal representation "in the interests of justice".

It does seem that your husband is being put under pressure because he didn't file his Witness Statement 14 days before tomorrow's hearing. Is that correct?

They could be seeking to ask the court not to admit his evidence for procedural reasons with costs consequences. But without knowng the facts or the amount of the claim it's not possible to comment.

I'm sorry I can't be more helpful because I don't know the history of this claim but I am familiar with PRA claims having defeated one myself (PRA v Diana Mayhew).

It may make sense to contact the Scottish Law Society to see if you can get help from a solicitor possiby on a Conditional Fee Agreement (i.e. No Win No Fee) depending on the value of the claim and your likely prospects of success if the case is adjourned again.

I wish you Good Luck for tomorrow.

Di

versace1888

Just_Di wrote: »

From what you say the Hearing is in a Scottish court tomorrow where there may be jurisdiction issues.

The proceedings have been adjourned twice by a Judge/Sheriff.

The solicitors for PRA are asking you to consent to another adjournment (continuance).

I can't say whether that's wise (for you to consent to an adjournment or not) but you need to attend the Hearing and decide whether you want to ask the court to dismiss PRA's claim (jurisdiction issues) or adjourn (continuance) to allow you to seek legal representation "in the interests of justice".

It does seem that your husband is being put under pressure because he didn't file his Witness Statement 14 days before tomorrow's hearing. Is that correct?

They could be seeking to ask the court not to admit his evidence for procedural reasons with costs consequences. But without knowng the facts or the amount of the claim it's not possible to comment.

I'm sorry I can't be more helpful because I don't know the history of this claim but I am familiar with PRA claims having defeated one myself (PRA v Diana Mayhew).

It may make sense to contact the Scottish Law Society to see if you can get help from a solicitor possiby on a Conditional Fee Agreement (i.e. No Win No Fee) depending on the value of the claim and your likely prospects of success if the case is adjourned again.

I wish you Good Luck for tomorrow.

Di

Thanks Di! My husband actually referenced your case in the last hearing and the judge asked him to bring information regarding it today! I sent you a private message. xx

versace1888

The solicitors have now come back saying that we should have given the court this information 2 weeks ago and they are putting forward a suggestion of some sort that we shouldn't be allowed to put our evidence forward. We have never been in court in our lives outwith this whole thing, how can we be expected to know the ins and outs of simple procedure! We are in court later so fingers crossed we can put our point across.

Just_Di

versace1888 wrote: »

Thanks Di! My husband actually referenced your case in the last hearing and the judge asked him to bring information regarding it today!

This may mean that the Judge has been focusing on assignment issues. Was this debt sold direct to PRA or was it assigned to Aktiv Kapital or Varde before that? Does the name Experto Credite mean anything to you (they managed debts for both Varde and AK)?

I don't know what your husband was supposed to have produced by today (or 14 days ago?) but if there was an Order for disclosure and it's not been complied with then that could impact on today's Hearing.

Likewise if PRA had an Order for disclosure.

I don't know what legal arguments your husband has pleaded in his Defence but you say the debt was last paid in 2012 and you believe it may be Statute Barred since you live in Scotland where the limitation is five years (not 6). That would depend on when these proceedings were issued because once they were issued the SB clock stops ticking.

Did your husband seek disclosure of any Default Notice?

Cases can be won or lost on two things. Firstly law (obviously) but also procedural errors such as non compliance with court Orders even if the 'law' (i.e CCA etc) is on your side.

Di

versace1888

Thanks Di - I have sent you a private message with more info xx

Just_Di

versace1888 wrote: »

The solicitors have now come back saying that we should have given the court this information 2 weeks ago and they are putting forward a suggestion of some sort that we shouldn't be allowed to put our evidence forward. We have never been in court in our lives outwith this whole thing, how can we be expected to know the ins and outs of simple procedure!

Our posts crossed.

From what you say it seems the Pursuer (Claimant) is intending to ask the Judge to rule on your husband's failure to comply with a court Order to provide evidence by a specific date. They want to prevent admission of any evidence he produces today.

Sadly ignorance of court procedure is not seen as a Defence by the court. Litigants in Person (a party with no legal representation) are at a disadvantage. But solicitors are supposed to be 'officers of the court' to assist the Judge in their decision making but not take advantage of the other side by concealing things etc.

Sadly the Judge can't do your job for you otherwise the other side would Appeal on the basis of bias. A Judge can drop hints as to the way forward (Adjournment etc).

I wish you and your husband luck at the Hearing today. I'm not too familiar with the Scottish legal procedure but you may be able to ask the Judge for permission to Appeal if things don't go your way. If so, then you need to do that after the Judgment and before he leaves the room.

If it is adjourned or you decide to seek advice on an Appeal then contact your local CAB to see if they can help you source a lawyer to help with the next phase on a No Win No Fee basis.

Fingers crossed

Di

Just_Di

versace1888 wrote: »

Thanks Di - I have sent you a private message with more info xx

I have received your PMs and have replied on your thread in line with this forum's rules.

I have raised the issue of the assignment chain (PRA have to prove title to the debt before they can claim anything) in a previous post, and also the issue of Statute Barred (5 years in Scotland) so if your husband has pleaded those issues then I would hope they can be argued in court today even if the Pursuer is successful in suppressing your evidence due to lateness.

The lateness issue can be addressed if your husband can demonstrate good reason such as he only got the evidence from MBNA at the eleventh hour.

Let the forum know how you get on today.

Di