Hearing to have SD set aside**Set Aside**

[Vikingbird]

Hi there,

I used to have a credit card with HSBC until the debt was sold on to Payment Services Bureau, then to Metropolitan Collection Services and now finally to Largo Legal & Receiveables (Phoenix Recoveries). I made offers of monthly installments to the first two companies, which they accepted. After paying by monthly installments regularly and without fail for a couple of years, Largo buys the debt and refuse to accept my offers, demanding much more than I can afford. I have nonetheless kept paying what I can, whether they like it or not. They have now gone as far as issuing a Statutory Demand. I applied to the court to have this set aside and now I have received a letter from the court with a hearing date ( I guess it's good news that my application wasn't dismissed outright, eh?). However, there is no mention of the creditor at all in this letter. Does that mean that the hearing will just be between me and a judge and no one else? I do feel fairly confident that a judge wouldn't order to make me bankrupt for a debt that I am already paying off. Don't know if it matters but the debt is in the region of £6K. I have asked HSBC to send me copies of all my old credit card statements so I can work out how much of it is just unlawful charges. I'm going to claim those back!

[42man]

Did you also send off for a copy of your Consumer Credit Agreement ? Did you get a letter of default ? any notices of assignment from HSBC to you or from a DCA telling you they had been assigned to the debt ? Did you get a letter before action ?

[Vikingbird]

No, I did none of those things. Would they really have made any difference? And if so, how? However, I did received notices from the HSBC that they had assigned the debt. I was just told I had to fill in forms 6.4 (application) and 6.5 (affidavit) to get the SD set aside. Even when I sought legal advice, they didn't say anything about getting a credit agreement or a letter of default. Would the letter of default have been form HSBC when the debt was first sold on in 2005 or a more recent one from Largo?

[nicklea]

Unfortunately, even if you are paying back the debt, a company can still successfully apply to make you bankrupt.

 

Just showing teh judge that you are currently paying this debt back won't necessarily (in my opinion) be enough to set aside the application.

 

Do you mind me asking, what adid you actually write in your application?

 

When it comes to the hearing, the other side might or might not turn up - never assume anything! They did in my case, but I think that was unusual.

[manchester1]

Hi Viking bird, i am just a beginner on the site ,and i am sure some of the experts will come along and give you more informed advice ( they know what they are talking about even more so then some solicitors sitting in the high st law firms) .However i would think that you should still ask for A COPY OF ORIGINAL CCA(AGREEMENT) , and same time a S.A.R to LARGO would help in the fight ahead to ascertain what charges they have put on the sum. From reading other posts i am sure you can fight this SD ,so chin up.

 

Manchester1

[Vikingbird]

Thanks for all replies so far! I just don't see what good the credit agreement would do. What difference would it make? I'm not disputing the debt. I may ask for one all the same though, just in case, but would HSBC or Largo have this? I have asked HSBC for old statements, as I want to work out the charges. I did write in my application/affidavit that I was disputing the amount of the debt as I don't know yet what proportion of it consists merely of charges, and I mean charges that were applied BEFORE the debt was first sold on. It might be a good idea to do a S.A.R. to Largo though, do I need any forms for this or can it just be a request in an ordinary letter? Would I basically just be requesting a statement of account? I also wrote that an SD seemed unnecessarily aggressive and vexatios especially considering that I have NEVER ignored correspondence from this creditor (or any other for that matter), have always made an offer of repayment and have kept those paymets up without fail. Well, should I be made bankrupt (which seems a tad drastic and severe) they will just be one creditor in a long line of creditors and may get very little in the end.

[nicklea]

Thanks for all replies so far! I just don't see what good the credit agreement would do.

 

If it doesn't exist or isn't enforceable then they can't take you to court - how about that for important

 

I did write in my application/affidavit that I was disputing the amount of the debt as I don't know yet what proportion of it consists merely of charges, and I mean charges that were applied BEFORE the debt was first sold on.

 

Excellent idea, but if after taking off all the charges the debt is still more than £750 then it will make no difference and they can still apply to make you bankrupt unless you also dispute the existance of an enforceable agreement

 

It might be a good idea to do a S.A.R. to Largo though, do I need any forms for this or can it just be a request in an ordinary letter? Would I basically just be requesting a statement of account?

 

You can certainly do this, just send them an ordinary letter. You would be requesting all information that they hold on you. However it probably won't be very much.

 

I also wrote that an SD seemed unnecessarily aggressive and vexatios especially considering that I have NEVER ignored correspondence from this creditor (or any other for that matter), have always made an offer of repayment and have kept those paymets up without fail.

 

Unfortunately, this is not a defence. ANYONE that you owe at least £750 to can serve a SD on you at ANYTIME.

 

If the creditor named on the SD is not the original creditor then I would suggest that another part of your defence would be that the debt has never been properly assigned under the Law of Property Act 1925.

 

Well, should I be made bankrupt (which seems a tad drastic and severe) they will just be one creditor in a long line of creditors and may get very little in the end.

 

Yes, but being made bankrupt is not pleasant for you either - it is generally best not to have to go through that.

 

It is relatively easy to get a SD set aside if you put a strong case forward. I would suggest that just saying that you have been paying it monthly up until now is not actually a defence

[42man]

Have a read of this defence, it is for the defence of a CCJ and not a Stat demand set aside...BUT the points here are all valid....

 

You could potentially defend your case by

 

Non production of the Consumer Credit Agreement (let alone it having the prescribed terms

Excessive charges

Non production of defaults and notices of assignment

Letter Before Action letter

No default letters.....

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the contract referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported contract that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) No account number is contained within the particulars to enable me to identify the account on which this claim is brought

 

d) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

The build up to this action

 

5. In the build up to this action, I had raised a formal dispute with XXXXXXX. on the xx/xx/2007 I wrote to XXXXXX requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the xx/xx/2007. (A copy of the correspondence is attached to this defence marked CP)

 

6. On xx/xx/2008 the claimant supplied a copy of an application form, annexed to this defence marked exhibit CP2, which was of extremely poor quality and contained none of the terms required by the Consumer Credit Agreements Regulations 1983. Accordingly I wrote to the claimant setting out the issues

 

7. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received

 

The Request for Disclosure

 

8. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

9. To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person ( a copy of the request is attached to this Defence marked CP)

 

 

The importance of a copy of the credit agreement and its production before the court

 

 

10. Firstly, I make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch),

 

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

 

 

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

11. The message clearly from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the consumer credit Act is clearly enacted to protect consumers such as myself and therefore the claimants failures to supply the information and their behavior in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence

 

 

 

12. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the consequences of such failings mean that the agreement is rendered unenforceable by section 127(3) of the Consumer Credit Act 1974

 

13. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

14. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

15. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

 

16. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. They cannot be found in a secondary document as according to section 61(1) (a)(b) &©, the agreement must at the time it is laid before the debtor contain all the terms of agreement

 

17. Furthermore, section 2 of the Consumer Credit Agreement Regulations 1983 clearly states

2 Form and content of regulated consumer credit agreement

s

 

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it relates to the type of agreement referred to in Column 1.

18. Furthermore I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

19. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

20. Notwithstanding point 15, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

The Courts Power of Enforcement

 

21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

22. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

23. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act.i refer to the judgment of Lord Nicholls of Birkenhead below....

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

24. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

25. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

26. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

27. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956,as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts

 

28. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

29. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit CP xxx) unenforceable.

 

 

The Need for a Default notice

 

30. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

31. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

32. Notwithstanding point 31, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

33. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

34. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

35. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce a compliant credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998

 

36. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

37. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

 

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

[42man]

When is it your hearing at court ? If it was me in your position I would get an adjournment and ask the judge to order a full disclosure of all documents

Statements for the term of the account

Copies of Consumer Credit Agreements

Copies Of default Letters

Copies Of Notices of assignment

 

 

Sometimes they will request a charging order at an SD hearing so be wary of that too....

 

It may not be too late to send a SAR to the original creditor

[Vikingbird]

If it doesn't exist or isn't enforceable then they can't take you to court - how about that for important

 

- But who would have it these days? HSBC or Largo? When would an agreement not be enforceable? When one can't be produced?

 

Excellent idea, but if after taking off all the charges the debt is still more than £750 then it will make no difference and they can still apply to make you bankrupt unless you also dispute the existance of an enforceable agreement

 

- It will certainly still be more than £750 and I am aware of this limit but I'd like to know how much it is anyway as I intend to claim these charges back

 

You can certainly do this, just send them an ordinary letter. You would be requesting all information that they hold on you. However it probably won't be very much.

 

- I will definitely do this! Would it be worth asking the previous two companies who bought the debt (PSB & MCS) for an S.A.R. as well or would all such info on this debt be with the current creditor?

 

Unfortunately, this is not a defence. ANYONE that you owe at least £750 to can serve a SD on you at ANYTIME.

 

- Sigh. Yes, sadly I am aware of this. I would just have to put my faith in a judge with common sense who doesn't order people to become bankrupt on a whim

 

If the creditor named on the SD is not the original creditor then I would suggest that another part of your defence would be that the debt has never been properly assigned under the Law of Property Act 1925.

 

- I do have confirmation from HSBC that the debt has been assigned to Largo. I'd have to seriously rummage through my archives but I could possibly also dig out confirmations of assignment of the debt to the other two companies as well, but I'm really not certain. I'd have to look first.

 

Yes, but being made bankrupt is not pleasant for you either - it is generally best not to have to go through that.

 

- It's certainly not ideal and I'd really like to avoid it. I will just have to gather my evidence and present it as best I can and hope the judge isn't against me from the start. In the only other court experience I've had though, I have not seen any sign of the judge/magistrates/etc automatically being on the side of the creditor. They were entirely unbiased. And rightly so.

 

It is relatively easy to get a SD set aside if you put a strong case forward. I would suggest that just saying that you have been paying it monthly up until now is not actually a defence

 

- No, probably not. But at least it puts me in a not altogether negative light. I HAVE always kept in contact with my creditors, I HAVE always made an offer of repayment and I HAVE always kept up the payments and I can prove all this. This does not give the impression of someone who has blankly refused to pay anything at all and disappeared of the face of the earth. That must mean a little something in my favour at least that I didn't just do a runner. The judge could have simply dismissed my application without even a hearing.

[Vikingbird]

Thanks for all your help with this, folks! In financial and legal terms, I'm quite illiterate and inexperienced and need all the advice I can get!

42man, the hearing's on 25 July 08. I received my old statements today (from when the account was first opened to when the debt was first sold on) but to my utter disappointment, there's not a single charge I can claim back on any of them! Grrrrrrrr! Very odd, I had expected there to be loads. There are some things I'm still not clear on, and I'd rather ask too many times and be absolutely sure than sending out erroneous letters willy nilly. Who do I write to for the CCA? Would HSBC still have this or would it be Largo? Is the request for the CCA a separate issue from the S.A.R.? For example; I'd request the CCA from HSBC but send the S.A.R. to Largo? Would I perhaps need to send S.A.R.s to the previous two companies the debt was assigned to as well, or would Largo have all the stuff? There was a warning letter from Largo before the SD was served and there was definitely a letter from HSBC saying the debt had been assigned to Largo. Looks like at least this bit has been above board. I can't remember any default notices but that doesn't mean they don't exist (just my fuzzy memory, I guess).

[42man]

Write to whoever is taking you to court...is it Largo ? then send them the CCA request (If it was me then I would also CCA HSBC...!!)...however If you send the CCA to HSBC then you need to request EVERYTHING....In which case send this SAR below to HSBC with a £10 postal order....and send it recorded....you can see the defence above, and you will get an undersatanding that all their paperwork has to be in order....The lack of a properly executed Consumer Credit Agreement is an absolute defence in itself....(and it has to have the prescribed terms too !!)

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, 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. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. 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 ORIGINAL CREDITOR.

4. 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.

5. 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).

6. Details of any collection charges 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.

7. 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.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. 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.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

[Vikingbird]

Thanks again 42man! Yes, it's Largo who's issued the SD, or more accurately, they actually got another company to issue it and deliver it by hand. However, in the letter about the hearing date, Largo are not mentioned at all. Will it just be me and the judge, then? You advise that if I send the S.A.R. to HSBC as well, I need to request everything and use the template you posted. That's fair enough, but what should the S.A.R. to Largo look like then? Can I use the same template or should it be much more basic? Do I need to enclose a postal order of £10 to them as well? And what if HSBC/Largo actually DO produce what I request, the CCA, default notices, assignment notices etc? I won't have a leg to stand on in court, will I!?! I do apologise for my utter lack of understanding of legal matters, I find it all very confusing and often the more I try to read up on it, the more confused I get. Even if I did get the CCA, I would have no idea if it had been properly executed or if it contained the "prescribed terms". How would I be able to tell?

[42man]

Well common sense must prevail....neither myself or you can give an opinion without the information, if it gets to court and they haven't produced any paperwork, then request the judge a full disclosure and ask for an adjournment until they comply with your reasonable request to provide ALL the paperwork so you can formulate a proper defence....

[Vikingbird]

Thanks for your reply 42man. So do I enclose £10 to each, or is it just banks who require this fee?

[42man]

I'm not sure you have grasped how important the Consumer Credit Agreement is, you would be surprised at how many CCA's are not kept,kept and how many are just application forms without the prescribed terms !!...have a read of this...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/133653-consumer-credit-agreements-letter.html?highlight=gareth

 

This is the corresponding act from 1974 to which there is HIGHER COURT CASE LAW which means that a lower (county court) must abide by....

 

Rights and Duties

CCA74 s189(1)

“ creditor “ means the person providing credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement, includes the prospective creditor;

 

CCA74 189 (1)

“ debtor “ means the individual receiving credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement includes the prospective debtor

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

 

 

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.

 

 

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

 

©

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)©, 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

 

 

 

[Vikingbird]

Many thanks once again! OK, to be on the safe side then, I'll send the S.A.R. template letter you posted and enclose a £10 postal order to both Largo and HSBC. Then at least I'm covered, I hope.

[42man]

If indeed all the paperwork is in order from their side then fine, you can push the fact that you were paying acceptably to Metropolitan and then Largo refused your reasonable offer of what you can afford (as I said previously my feeling is they will try to get a charging order !!) As for the SAR request it is £10 for each you make....but you only need to send the SAR to HSBC

 

Send the CCA request to Largo, as by the time the hearing comes around they may well be in default of your request....which if you refer to my last underlined point, you can see that if they don't comply with your CCA request then the debt is unenforceable...

[Vikingbird]

Does the CCA request have a specific template as well or can I just compose my own letter? I'll have a look in the template library and see what I can find...

By 'charging order' do you mean that they may request a charge against my property so that a proportion of the proceeds of any future sale automatically goes to them?

[42man]

Yes....you're right, they will attempt to ask a judge to reinforce your agreement with them by requesting a charging order....

 

As for the CCA request send them letter 'N' from here... http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html

 

Send this with a £1 postal order, by RECORDED or GUARANTEED DELIVERY (do not hand sign it)....they have to provide this within 12+2 working days or they are in default of your request....

[Vikingbird]

Thank you vey much 42man, you've been a great help!

[Vikingbird]

OK, I've got the letters ready. An S.A.R. to HSBC and a CCA to Largo.

1. You mention that I should not hand sign the CCA, any particular reason for this?

2. Would it also be worth asking for default notices in my CCA to Largo or can I only ask for the CCA?

3. I have all correspondence from Largo with me at work today and I have just read in their notice of assignement letter that they are now the data controller of my personal data contained in the records of this account. In light of this, would it be a better idea to send the S.A.R. to Largo instead and leave HSBC out of it altogether? Or would that be a bad idea as it would give them 40 days to comply and then it would be too late for the hearing?

[42man]

It has been alleged that some DCA's will photoshop your signature and put this on to credit agreements...

 

Largo would not have the default notices they would come from the original creditor

 

NO send the SAR to HSBC.....

[Vikingbird]

OK, thanks, I won't sign the CCA then. Mind you, Largo have plenty of other correspondence from me (all the letters from me pleading with them to accept my offer of repayment) and they can just as easily photoshop the signature from those.

I can still go ahead and sign the S.A.R. to HSBC tho?

[42man]

No....don't sign anything by hand, you don't need to...