Yes I was present October 2014 when the case called.
I managed to argue successfully that the defender should be renamed to Mrs Elizabeth T.Stobo; she is the executor. The defender resisted with a hopeless argument seeing as part of her defence was that I had not named a living person on the summons. The Sheriff allowed the amendment.
The defender had entered a defence and clauses 3,4 and 5 are relevant to this cause of action.
Clause 3 states that the RBS wrote her a letter saying that Mr K.Meara (deceased) made all repayments to RBS; a fact that she says is backed up by bank statements.
Clause 4 shows those bank statements.
Clause 5 deals with the proposition separatum esto that (in the alternative) the Pursuer is only entitled to a reduced amount in terms of clauses 3 and 4 above.
I have a letter from RBS that states that the pursuer made all of the payments and the defender made none. It explains that the computer only records the first name on any jointly-named bank account and therefore all bank statements in this matter wrongly record K.Meara as the payer; (hence the error of the defender who is the executor for K.Meara's estate.)
On 15th January 2015 it is not a proof diet; I am told it is a debate. I would expect to argue the evidential facts; the clerk has said not. He says that I need to address clauses 3,4 and 5 which I expect to and I don't think he really understands that they cannot be addressed without an evidential approach.
This is what I need your advice on. It may be that you agree with me that perhaps the clerk was misunderstanding something. I do not know the cause rules in Scotland; I understand the civil procedure rules in England, otherwise I would not be asking you this question.
I'll contact you next, under a separate question as to how to create the first inventory of productions and the counterclaim to the defence from the information I shall supply to you. On this, all I need to know is the format and any specific words like (crave, etc) that I need to use. I shall state the legal arguments.
It is a summary cause summons of the pursuer against her dead husband's estate.
It concerns the non-payment of payments she made in respect of the joint loans to the Royal Bank of Scotland prior to April 2011 when the parties were divorced.
Under clause 1(b) of the Minute of Agreement dated March 2011 which formed the basis of the divorce, the parties agreed that each would be repaid his/her respective payments to the RBS loans. This was not honoured by the defender in respect of the pursuer who made all of the repayments.
Keith Meara died in October 2011 and his estate has, since then, disputed the pursuer's right to this repayment.
Moreover, the defender's agents have repeatedly kept secret the identity of the executor of the estate.
The amount is £5,813.
In February 2014, I lodged a summons for £5,000 and expenses for payment under the summary cause rules in Perth Sheriff court where the decree of divorce was granted. It was undefended.
On 2nd April 2014, we obtained a decree and expenses in the form of an extract for payment.
I took a chance and served it on Elizabeth T.Stobo.
Within two hours she instructed agents and they entered a recall motion in the same court.
In August the decree was recalled under a summary cause rule that allows each party one recall per action regardless of any supporting, convincing legal argument.
The case was continued until mid October. I have told you about the outcome and now it is continued until 15th January 2015.
These are the facts.
As an aside, it seems like Sheriffs' courts like to continue matters rather than resolving them.
This is the antithesis of English civil procedural execution.
I reckon you're right on d and that either the Clerk misunderstood or I misunderstood the Clerk.
To me, making an argument means using the evidence in a matter.
In this matter, there are no obscure points of law.
I think the points above are what have been confusing me.
If we cannot resolve this when the case calls in January, can I please write separately to you, asking what documents do I need to create, what special wording do I need (like condolescences - I think and assoilsies) and just general advice on how to lay out the documents?
I will, of course, pay extra for this advice.
All the best