Court case ... 28th july 2008

[josh8]

On thursday 3rd of july, i am going to court to have my order put aside, Co-op bank is taking me, but the agreement i asked for, is a copy of the application form, this does not comply with the 1974 act.

could any body urgently advise me what to say and what will happen
thanks

[little nest of vipers]

From what I've read on here an application form does not constiute an agreement as it has no term or conditions, interest rates or credit limits. I am learning my self here so don't take what I'm saying as read but i believe I've read on here that when companies take people to court and have only provided them with a copy of their application, it been thrown out.

[maroondevo52]

Hi, Josh8.

This letter is used for non-complience.
Have a read, might help you a bit.

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

My request remains outstanding. An application form, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A application neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You had until XX/XX/2007 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 + 2 working days of a proper Consumer Credit Agreement request. If you fail to comply with a legitimate request the account enters a default situation and if you fail to comply after a further 30 days you commit an offence. If you continue to try to enforce this debt without complying with my original request you will have committed a criminal offence and your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to offer credit in the future.

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.


I look forward to your reply.

Yours faithfully


**amend to suit your circumstances.**


Regards.

Scott.

[josh8]

Hope you could give me your views on my wife's court order to have credit card debit set aside, bank are taking her for insolventes.she asked for c.c.a which was a copy of application form from 1976, this in our minds did not conform with the 1974 act.
the court hearing was on the 3rd july 2008, she rang court, who said she had no need to attend so we copied most of your information off forum and made this her defence and submitted it.
she rang on the 4th july 2008 for the descision and was told that a new hearing date was made 28th july on receiving new date,form stated that banks solicitors had given their defence on that day.
Would you know whats going on? we will be attending on the 28th july...
HELP!!!

[42man]

Josh.....i'm on my way out unfortunately.....but briefly...have you sent a Subject Access Request to the original creditor ?? requesting all paperwork ?? Have you not received any defence from the other side ?? common sense says how can you defend this without seeing any of the information ?? default notices ?? notices of assignment (was it passed to a DCA ?) letters before action ? excessive charges ? was the process served correctly ? as you say if it is just an application then it will not have the prescribed terms....If they do produce some new documentation, then I would request an adjournment at the next hearing so you can validate it all....

[Docman]

Hi Josh

Welcome to CAG. I'll help out if I can while 42man is away. Can you post up a few de-personaised details about your OH's position?

When did she ask for the CCA? Was a copy of the form from the credit card company or the debt collection agency? Can you post up a copy of the court claim form (mask the name and any court number and amount)?

Cheers

Doc

[josh8]

hi thanks have not ask for s.a.r. no defence sent. a notice of termination was issued on 15 jan , default issued on 11 may . was not sent to d.c.a . no letter before action . hand served sat demand. had just start excess charges and heard this week that thay are giving them back !!!! asked solicitors for c.c.a. after sat demand served .

[josh8]

hi doc will put copy of court claim on line 2 mos . thanks

[Docman]

I'm not clear from your posts whether the creditor has started a court claim or just served a statutory demand. A court claim would be from the county court on a N1 claim form.

Alternatively, many DCAs issue a statutory demand which allows them to start bankruptcy proceedings without obtaining a court judgment first. However, as they have to stump up a large deposit in cash, many don't follow through and are really just using the stat demand process as a threat.

What kind of claim was made against you?

[josh8]

hi doc creditors solicitors seved a sat demand we applied to court to have it set aside . on grounds of no c.c.a. . we than got a date to go to court . and solicitors came up with the applcation form . i did not go to court as i was told i did not have to if i did not want to , so i put my defends in writing , when i ring the court the next day , i was told i had a new date for 28th july as i did not turn up .i than had letter from court which said , upon the applicant not appearing and upon hearing the respondents solicitor and upon reading the evidence it is ordered that the application be adjourned to 28th july and it is ordered that the cost be in the case .

[Docman]

Hi Josh

OK. first things first, make sure you and your OH attend the court hearing next week. When you go in, apologise to the judge and explain that you had telephoned the court and had ben told you did not need to attend. Leave it at that and let the judge deal with the issues.

As I understand the case, your OH had a Notice of Termination dated 15 January 2008 sent to her in respect of a credit card agreement. A Default Notice was issued by the bank on 11 May 2008. A statutory Demand was issued to her and you then applied to have that Stat Demand set aside. The first hearing was on 3 July but becasue you didn't turn up, the hearing was adjourned further until 28 July. On 3 July, the creditor's solicitor produced a copy of the application form from 1976.

In order to get the SD set aside, you will need to show that (a) the bank cannot succeed because they do not have an enforceable CCA OR (b), if they have a valid enforceable CCA, then the amount is disputed.

Can you take out personal details and post up the defence or application you filed to set aside the SD and also a copy of the application form the bank sent in to the court. BTW, how are the bank claiming and how much did they agree to refund for unlawful charges?

[josh8]

The court has the application form but what we gathered the perscribed terms where not on there. The amount we are being taken for is £5,000 and the unlawful charges they are giving back are £300.

[Docman]

Originally Posted by josh8

The court has the application form but what we gathered the perscribed terms where not on there. The amount we are being taken for is £5,000 and the unlawful charges they are giving back are £300.

So you have NOT been served with a copy of the CCA?

[josh8]

They sent us my original application form, we do not believe this prescribed the terms of the credit agreement, which we sumitited with the court of the 4th of july.

[Docman]

Josh,

It looks like you will have to attend the Court and explain that this is a disputed regulated credit agreemnt under the CCA 1974 and the creditor appears to be circumventing the provisions in that Act by using the insolvency procedures.

Can you post up a copy of the CCA/application form that was supplied and also let us know the date of the Default Notice.

[josh8]

send only copy to court with my difence 0n 3th july. default notice send on 11th may .

[josh8]

hi can any one help , if the s.d. goes against us do u no what ad any happens ??? and can u appeal . is it right that we have not had any defence from the solicitors a part from application form !!!!