Help with Court summons from Restons

[goorooji]

My wife has received a summons from Restons Solicitors on behalf of HFC Bank for 17k the issue date is 12 march 2008.

I am reasonably familiar with what to do as i have done it before, however this time i need help to decide if i should contest the whole amount of the claim.

The original debt was for about 10k back in feb 2005, restons agreed on a reduced monthly payment of £7, now they have decided to go to court.

But they have added 7k interest on the debt. I thought they had stopped ineterest, because we had entered an agreement.

Can they do this?

Should we defend the case by agreeing only part of the claim?

If so what is the best course of action?

I do not have the CCA so not quite sure whether it is in there right, but i understand that a lot of creditors do have a very tight CCA and are well within their rights to do so.

Unfortunately we do not have much time as i just found this forum and the issue date of the summons was 12 March 2008.

So i think the deadline for us is 31 march 2008, 14 days after 5 days of the issue date, 12 + 5 = 17 + 14 = 31st...??? Is this right?

Restons already have 2 charges for my debts on our house totalling 27k, so i am a little concerned if they get another charge of 17k they may well go for bankruptcy!!!

Our total debt at present is 170k... with 25 debtors in total
2 joint debts, 5 my wife's and 18 for myself.

I am fighting a losing battle, or is there really hope for us...???

Any help would be much appretiated. Thank you.

[42man]

Without a CCA, then the debt is totally unenforceable, I believe the next step is to send a CPR request....you get 14 days to acknowledge the claim from the date of issue, then a further 14 days to file a defence, it sounds like you could also dispute the debts due to excessive penalty charges also if the CCA has the prescribed terms and is properly executed.....

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


Dear XXX

REQUEST FOR INFORMATION

I have received a recent court claim from your organisation. 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, 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.
2. 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 my 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 the original creditor 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 the 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).

[42man]

It might well be a tough battle, but you would be surprised at the amounf of unenforceable CCA's there are flying around.....and don't forget the excessive charges which you can claim back + 8% compounded interest....

[goorooji]

Thanks for that. just a couple of questians.

Do we have to send a fee for the requested docs?

What should be written to the court within the deadline to explain this?

Is there a standard type of letter, or anything important that needs to be addressed?

As i see it, i would have to request for additional time of 14 days by submitting the defence form stating that i dispute part of the claim and only agree part of it.

Then make a CCF request to Restons.

I would then have to send a defence to the courts within the deadline, which i need to prepare, any advice on that score?

[42man]

No you don't have to send a fee for the documents it is part of the process...but send the letter by recorded delivery....

I'm not an epxert on these but take a read of these threads...

http://www.consumeractiongroup.co.uk...-recieved.html

and these here too...

http://www.consumeractiongroup.co.uk...gal-successes/

[42man]

It might even be worth disputing the whole claim !!! I am hoping somebody may be able to assist you further.....

[goorooji]

I have already admitted the debt initially when negotiating to pay reduced monthly installments to Restons, can I now dispute the whole claim?

Or is it better to only dispute the interest and charges?

My main concerns are that if they get a charge on the property, after obtaining a CCJ, can they go for bankcruptcy???

I read somewhere that a debtor cannot bankcrupt you if they have security such as a charge on your property, is this true?

My deadline to reply is 31 march, i would appretiate some advice.

Thanks.

Goorooji

[42man]

A debt can be disputed at any stage, you are probably now more aware of your rights, and bear in mind without a properly executed agreement (which has to contain the prescribed terms) then it is unenforceable in court....and yes they can go for bankruptcy and if they get a chrging order/final charging order they can enforce that charge....

This is a bit of legislation about the Consumer Credit Act....and enforceability

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.


8.3 What are the prescribed terms?

The prescribed terms specified in Sch 6 are as follows:

* amount of credit – see Q8.

* credit limit – see Q8.5
* repayments – see Q8.9.
* rate of interest – see Q8.6

Sch 6 was not amended by the 2004 Regulations.



They need to keep documents such as a copy of the agreement for 6 years after the closure of the account to comply with money laundering legislation.


IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)
PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE
CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations
(If you just want to find out, skip the bits in between the stars it’s just some extra information)

**What do we mean by unenforceable?
In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.
Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

How does unenforceable differ from enforceable with a court order only?
When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.
When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

The Prescribed Terms are these

A Amount of credit
A term stating the amount of credit

B Repayments
A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-
(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

C Rate of interest
A term stating the rate of interest to be applied to the credit issued under the agreement
D Credit limit
This may be a term or the manner in which it will be determined or that there is no credit limit.
--------------------------

Which of these applies to you depends on the type of agreement you have?

For a Running Account (credit card) agreement

BC and D Apply

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
• The money can only be used for the purpose it is given.
• There is no interest on the purchase (the cash price is the same as the total price)
• And there is no advance payment

A is applicable

For a fixed Sum Credit Agreement
A conventional credit agreement with none of the above restrictions

A and B apply

For a Hire Agreement

B is Applicable

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.
Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

If you want to put the debt into dispute then read this too....

They HAVE to produce a copy of your CCA within 12 working days otherwise they fall in default of your request, (at this stage they CANNOT legally enforce a debt) and if after a further 30 claendar days they still haven't produced it then they have committed an offence under the Consumer Credit Act of 1974 !!

Consumer Credit (Prescribed Periods for Giving Information) Regulations
1983 (SI 1983/1569)

2 Prescribed period
The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1
of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements



SCHEDULE
SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN
RELATION TO REGULATED AGREEMENTS
Regulation 2
Section of the
Act
Duty
(1) (2)
77(1) Duty to give information to debtor under fixed-sum credit agreement.
78(1) Duty to give information to debtor under running-account credit agreement.
79(1) Duty to give information to hirer under consumer hire agreement.

and section 78 for running credit


78.
Duty to give information to debtor under running-account credit agreement.
— (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
(a)
the state of the account, and

(b)
the amount, if any currently payable under the agreement by the debtor to the creditor, and

(c)
the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.


(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3) Subsection (1) does not apply to—
(a)
an agreement under which no sum is, or will or may become, payable by the debtor, or

(b)
a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.


(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—
(a)
showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b)
where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.


(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6) If the creditor under an agreement fails to comply with subsection (1)—
(a)
he is not entitled, while the default continues, to enforce the agreement; and

(b)
if the default continues for one month he commits an offence.


(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement

[goorooji]

Thanks 42man.

Therefore according to you I should dispute the claim and request for the additional 14 days, then at the same time send off the CPR request to Restons and wait for reply.

In the mean time what defence should I be preparing to submit to the courts?

Whether I get the requested information or not I presume I have to make a defence by the deadline?

And do I have to send off a CCA as well or is it included in the CPR?

Thanks.
Goorooji

[42man]

In the first instance (and ASAP) if it was me I would send off the CPR (by recorded delivery).....I will ask someone a bit more learned on this to take a look...

[42man]

The CPR will include the CCA request, I have asked a more learned guy to take a look here (he will take a look when he gets a chance), in the mean time have a read of some of the threads here....

http://www.consumeractiongroup.co.uk...gal-successes/

[goorooji]

Thanks man42.

I will send off the CPR Tuesday to reach gaurantied next day delivery.

I will also have to send the forms to the courts for the defence & extra 14 days by wednesday.

So it would be great if I can get more info and assistance.

Goorooji

[pt2537]

Hi There,

Firstly can io ask you to post the particulars of claim, that is what they have put on the court forms.

now can i also ask what if any documents were supplied with the court form,

42man has pointed you to a good letter to send them Spec Delivery and i would amend it to suit your situation and then fire it off to them asap

you need to check each point suits your circumstances, for example theres no point asking for a notice of assignment if the debt is still with the original creditor

once you let us know that the POCs say i can help you further