New to the CAG - but desperately need your help **WON**

[GRJarestars]

hello everyone, I have been reading your posts for the last couple of weeks and have drawn both strength and encouragement from it. Thank you so much.

I have recently been contacted by a DCA regarding a credit card that I have no memory of ever having. They have supplied me with a copy of my application form which they say is the agreeement. Unfortunately, this would have all happened around the time my husband left me with 3 kids and lots of debt. I have mostly cleared it and this has come like a bolt out of the blue. In addition, I have now remarried and my new husband knows nothing about this debt. it is really terrifying me. Please can someone help me?

I desperately need advice on several areas of the law.

1) Does anyone have a copy of an application form from 1999 that they would be willing to let me look at, i would like to compare it to mine to see if mine is enforceable? I dont have access to a scanner so I cant send in mine.
2) If the OC has never served/cannot prove that they have served a default notice on me is this a defence?
3) if that said default would have included unlawful credit card charges could it be argued that it was substantially wrong and therefore unenforceable?
4)if the dca only provides me with partial statements which only show interest payments and charges can I use this as a defence. they have only sent me the last two years statements not the first year.the statements show no purchases at all.
5)if the dca purchased the debt and did nothing to contact me for 5 years can they claim interest for the whole period?
6)they say they cant produce a copy of the assignment letter they originally sent me because they never keep copies - how can they prove it was served. they can provide me with a template. they say they would have served it on me five years ago either on the same day that they bought the debt or shortly after. is this sufficient?
7)they have asked me to produce certain information regarding my financial details to prove it isnt my debt. Do I have to do this?

Sorry my first post is so long but desperate to resolve this matter.

Thanks for reading.

Leigh

[Docman]

Hi Leigh and welcome to CAG,

Sounds like you have an old MBNA account. They tend not to have all the prescribed conditions and may not be enforceable.

Can you provide a few more facts about you case? Did you CCA the DCA by recorded delivery and enclosing the statutory fee of £1? Did you use a template from CAG?

Has it been more than five years since you last had any contact with anyone about this debt? Did you acknowledge the debt when you wrote to the DCA? And finally, it may seem daft, but I assume you changed your name when you remarried, so do you know how they traced you?

Doc

[GRJarestars]

Hi Docman. Thank you so much for responding. The first thing I knew about this debt was when a county court application arrived. I sent it back saying I knew nothing of the debt. The court then wrote to say the DCA needed to provide me with documents they relied on at least 7 days before the hearing. In the meantime I wrote to the DCA asking for things I thought I needed to defend the action. I didnt enclose £1 or rec del. I said that as they had started legal action I needed the info.They did not reply (i hadnt found this site then) I have now served them with a CCA using CAG template and enclosing £1 and by rec del.

Sadly, I kept my maiden name for the sake of my children and havent moved house. They say I made payment five years ago.

[Docman]

If you have had a court claim (N1) form, you should acknowledge receipt asap if you have not already done so. Do not acknowledge that you owe any debt at this stage.

Once the litigation has started, you can ask for more documentation from the claimant usually through their solicitors. When they don't reply, you file a defence basically denying the alleged debt and requiring them to prove it.

I'll dig out a letter to send demanding information under the civil procedures Rules and a draft defence. What was the date on the N1 and when did you receive it/ Can you post up the 'particulars of Claim' on the form. If you can't scan it in, can you type out the points put in by the claimant?

Doc

[firstwithit]

This must be very near to being Statute Barred.

When did you last pay anything on it???

If its 6 years or more you dont have to pay it but be careful if you write to them.

[Docman]

Hi again

I'm not very good with links, so I tend to paste the text. The following is based on a very good letter from others on this site, so I don't claim any credit for it but it should provide a good start and make them realise you mean business. If they do not respond, you can add something like this to your defence. By the way, when do you have to get your defence in by?

" Dear XXX

In the XXXX County Court
Claimant -v- (YOUR NAME)
Claim Number: (CLAIM NUMBER)



REQUEST FOR INFORMATION –CPR 18.1
I have received a recent court claim from your organisation. Please note that I do not acknowledge any debt due to your company.
In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules 18.1, the information and documents detailed below:
The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.
1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened and which comply with the Consumer Credit Act 1974 and all subsequent regulations
2. A true copy of the Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, sent by the *********.(AMEND TO THE COMPANY NAME).
3. A true copy of the contract or deed of assignment that *********. (AMEND TO THE COMPANY NAME) relies upon to claim title over this alleged account.
4. A true copy of any Notice of Assignment sent by *********. (AMEND TO THE COMPANY NAME) to me together with a copy of any proof of postage compliant with s196 of the Law of Property Act 1925.
5. All records you hold on me relevant to this case, including but not limited to:
a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor.
b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to any account formerly held with *********.(AMEND TO THE COMPANY NAME)
c. True copies of any notice of assignment and/or default notice or enforcement notice that you or *********.(AMEND TO THE COMPANY NAME) sent me, with a copy of any proof of postage that you hold.
d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.
f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998
h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.
i. Copies of statements for the entire duration of this alleged credit agreement.
3. Any other documents you seek to rely on in court.

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.
Yours sincerely,

XXXX (type, don't sign). "

[GRJarestars]

This is a copy of the poc I have received from the DCA. The court hearing is on 31st January in my local County Court. Can any one help with a defence to it please?

POC
The claim relates to a credit card debt that the defendant originally owed to xxxxxxxxxx The debt was assigned from xxxxx to the claimant on 12th December 2002. It is company practice followed on all accounts assigned to the claimant to send a notice of assignment of the debt to the defendant pursuant to s.136 Law Of Property Act 1925 by letter. This letter is posted either on the date of assignment or shortly thereafter. Copies of the original letters are not kept, however at page number 1 is a copy of the template letter that would have been sent to the defendant following the assignment of the debt. This notice discharges the claimant’s duties under the act and therefore the legal right to the debt has passed to the claimant.

defence

The defence alleges that the defendant did not enter into a contract with the claimant and therefore the defendant does not owe the claimant the amount claimed. The claimant does not claim that the defendant and claimant entered into a contract. As i will show below, the defendant did enter into an agreement with xxxxxxx. As detailed above, the debt was obtained by the claimant by way of assignment from the original creditor xxxxxxx. The claimant therefore has the legal right to the debt. The defendant does not deny entering into a credit agreement with xxxxx or breaching this credit agreement in the defence.
The defendant alleges in the defence that he has not heard from the claimant or had any contact with the claimant prior to the receipt of the claim form. All correspondence from the claimant has been sent to the defendant at xxxxxxxxx. This is the same address that the defendant gave in defence for notices about the claim to be sent to.. at pages 5 -8 are copies of letters sent to the defendant by the claimant and the claimants solicitor prior to the instruction of solicitors. It appears that the defendant denies receiving these letters. The defendant states in the defence that the claim form was received but does not explain why it is denied that all previous correspondence from the claimant was not received.

The agreement

At page 9-10 is a copy of a credit card agreement regulated by the consumer credit act 1974 made between xxxxxxxx and the defendant. The agreement bears a signature purporting to be that of the defendant dated 7th April 1999.
The statements
At page numbers 17 – 40 the statements the claimant obtained from xxxxxxx for xxxxxx card account numberxxxxxxxxx. The statements are in chronological order and dated from 2nd June 2001 to 4th November 2002.
The statements dated 4th November 2001, 4th April 2002, and 4th June 2002 copied on page numbers 19.,27,and 33, show that three payments were received into the account. The payments received into the account detailed on page number 27 and 33 were both made by cheque.
It is unclear from the defence whether the defendant denies knowledge ofxxxxxx or whether she denies making payments into the account. The Claimants solicitor has written to the defendant to provide copies of the defendants bank statements for the period detailed by the statements of the claimant. A copy of the letter is provided at page number 41. These statements should show these payments were made by the defendant.
During the remaining months represented in the statements, no payments were received into the account. This was a breach of the terms of the credit agreement, which are copied on page 10.
The statement dated 4th July 2001 on page number 17 shows the credit limit of £4500 was exceeded as the balance at this point was £4587.87. after this date there were some payments received into the account as stated above, but the excess amount over the credit limit was never paid back in full.
The last payment into the account was received on 4th June 2002 as shown on page number 33. The final balance of the account £5314, 88 as shown on page number . To date the claimant has not received any repayment from the defendant into the account.

Conclusion

I respectfully submit that the agreement and statements submitted show that the defendant entered into a credit agreement with xxxxx. The defendant breached the terms of the agreement by failing to make payments according to the terms of the credit agreement. She made some payments into the account but has failed to repay the outstanding balance. The claimant has not received any payment from the defendant and therefore claims the debt that remains due from the defendant.

The claimant requests judgement is entered in favour of the claimant, payable forthwith, in the amount of £ £5314, 88, plus costs of £830 and £2,451, 80 interest. Therefore the total judgement amount requested is £8596.68. Interest is charged at the rate of 8% per annum under s.69 CCA 1984 (daily rate of £0.95) from the date of assignment to the claimant (12th December 2002) to 30th January 2008. Following CPR 27.14(2), the claimant claims £100 fixed costs of issue pursuant to CPR 45.2A and court fees in the amount of £240 issue fee, £100 allocation questionnaire fee and £300 hearing fee pursuant to CPR 27. 14 (3)

[Docman]

OK, it looks like the court and the DCA have taken your reply to the court as a defence. . The DCA has then tried to answer your points.

Three issues come to my mind here.
1. The Credit card agreement. The DCA doesn't claim that the agreement contains all the prescribed terms. If the debt was assigned in 2002, it would have started much earlier and I suspect that it might just be an application without all the prescribed terms. I'll assume it doesn't meet the CCA but it would be useful if you can scan it after removing personal details and then everyone can comment.
2. Notice of Assignment. Translated 'we haven't got one'. Tough on the DCA. You insist on one.
3. Previous correspondence - could be a tough this one. Normally, it would be their word against your word that they sent you the letters to your address and all they would have to do is produce their copies. If you live at the same address, a court might consider that, on balance, you would have received the letters. What would sink the DCA's argument is the time frame. This is a DEBT COLLECTION AGENCY. Are they trying to tell the court they didn't do anything when you didn't respond to their letters for over 5 years!
I'll draft a defence and post in a few minutes for general comment.

[Docman]

Sorry, I got delayed in drafting a deffence. I've come up with the following. You will need to check the facts against the documents. Also have a look at the 'sticky' about whether an credit agreemnt is valid.

I noted that your court appearence is at the end of the month. Hopefully, this will be at your local county court. You should make eveyry effort to attend the hearing. It isn't that bad, honestly!

Any way, here's my effort

Defence allstars.doc

Any comments humbly received.

[sillygirl1]

This debt would be statute barred in June this year, they are being unreasonable bringing court action after such a long time without doing anything so that can form part of your defence - it's in the OFT's regulations somwhere....

[GRJarestars]

Thank you for your email, Silly Girl. do you have a link to the OFT regulations that you refer to ?

[GRJarestars]

Docman.

thank you so much for all the advice you have given me over the past week. I Have read the attached document to use in my defence. it reads brilliantly. Do I need to attend the court and just read it out or do I have to send it in advance. or do i need to attend on the day and hand it to the judge?

should I say anything about the fact that if it were an enforeceable debt then there would be an issue over unlawful charges?

[sillygirl1]

It's 6 years with no acknowledgement to be statute barred, and this is just within the guidelines (but only just....) the OFT website has a lot of info on debt collection guidance which is worth reading, if you google it it will bring the latest link (I'm not very good at pasting links...) You might also find them in a sticky on this site.

[Docman]

Originally Posted by GRJarestars

Docman.

thank you so much for all the advice you have given me over the past week. I Have read the attached document to use in my defence. it reads brilliantly. Do I need to attend the court and just read it out or do I have to send it in advance. or do i need to attend on the day and hand it to the judge?

should I say anything about the fact that if it were an enforeceable debt then there would be an issue over unlawful charges?

You need to make any changes that are needed and then send a signed version to the Court ASAP. You should also send an initialled version (ie without your full signature) to the solicitors for the DCA. If you can fax the defence to the solicitors, you should do so. I think they should have 7 days notice. If you can't fax it, just post it. They can't complain much about timings, can they?

You should attend the court hearing. I'm not sure from your posts what the hearing is for. Can you post up what the court has sent to you (minus any person details)?

[GRJarestars]

This is what I received from the Court so not sure what the hearing is about?


Upon reading the claimants fax

it is ordered that

1. the claim is stayed until 6.12. 2007
2. at the end of that period the claimant must file -

A) a draft consent order disposing of the claim

OR

B) a statement of issues in dispute & proposed directions stating whether these have been agreed with the other party & if not, why not.

OR

C) a request for a further stay accompanied by a statement of issues in dispute & the steps which it is proposed to take to resolve the issues.


the next thing I received was a letter from the solicitors dated 14th Jan. enclosing that staement that I have typed up already. saying proove you didnt make those payments by supplying your bank statements by the hearing on the 31st or see you there basically.

does this all make sense to you?

[Docman]

Yes, it looks like the claimants solicitor realised you weren't going to lie down and allow judgment by default, so they asked for extra time ( a 'stay' ) .
They haven't come up with much in the meantime. I'd file the defence as soon as you can.