Congrats Bluefairy, unfortunately results like this are few and far between so it's important to acknowledge them. It just goes to show what a little bit of courage and backbone can help you achieve. Scales tipped kind regards, Shane

Hi Benwell, The important thing to remember here is that non compliance of a CCA request gives you the right to withold any payments to the account, after 12 working days of non compliance the creditor enters a default situation, and until rectified (ie a compliant cca is provided) you can stop all payments. Now if they havent responded thus far, it is highly likely no CCA exists, or a a non compliant one held on microfiche at best. Should one turn up for any of your accounts just scan it in, removing all personal details and post here so we can advise if it is enforcable or not, certain terms must be evident on it etc etc. I would simply stop all payments and wait for the creditor to make the next move. It is definitely worth informing the OFT and your local trading standards of the non compliance, though keep in mind the previous advice given with regard to them taking action, or subsequent lack of! regards, shane

Hello Basil, Having read your site it mentions onces you have registered and paid the fees then our details would be pased onto third party specialist business partners who would then do all the work and act on our behalf. Could you elaborate a little more on these business partners and the types of companies/organisations they are please etc regards, shane

hi popeye, can you post up the defence yeah the motions/directions are submitted at the AQ stage kind regards, shane

hi postggj, have a read of this thread - http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/115630-pricing-default.html?highlight=pricing

your both very welcome! best of luck regards, shane

sure here you go Kpohraror v Woolwich Building Society - [1996] 4 All ER 119.pdf

Hi, see attached for the case regards, shane Woodchester Lease Management Services Ltd v Swain and Co.pdf

Hi popeye, sorry for the tardy response, got several claims on at the moment. When do you have to get your defence in by? regards, shane

Hiya, Overdrafts differ from loans and credit cards, they are regulated by the Consumer Credit Act however subject to a Determination Order by the OFT the lender is not required to hold a credit agreement to enforce the debt. However, the lender IMO is required to have infomed you on the basic terms of the overdraft when it was opened, ie credit limit, rate of interest, repayments etc. They should of written to you with a brief outline of these terms. You would need to send a S.A.R - (Subject Access Request) to ascertain whether they ever sent this or not. I agree with Paul in that should this be escalated to litigation you would most likely be successful in getting it stayed, DJ's seem to want to Stay as many cases as they can a the moment. kind regards, shane

a counterclaim would be a waste of money IMO as it would only be stayed pending the OFT Test case besides which if i read your post correctly your original claim for penalty charges has already been stayed? Is the debt in relation to an overdraft or a loan? kind regards, shane

I would be more than happy to donate, gauging how a court and more importantly a district judge acts in situations like this invaluable, though I've been in court for similar cases on many occassions we still have to few 'real experiences' to go on. Maybe a post outling the facts of the case, donation etc and a link to a paypal account would be allowed? kind regards, shane

Hi Rilly, Yeah you should send them to Howard Cohen & CO, always send any letters with regard to litigation to the addres stated on the claim form with regards correspondance. and have a very merry xmas!! kind regards, shane

I agree, even if novation takes place the rights and duties under the CCA still stand, as such the creditor must still adhere to a CCA Request, though ufortunately debtor cannot withold payment after 12 working days due to overriding CCJ Judgement kind regards, shane

Hi Rilly, As Goldlady mentioned, CL Finance have a bad reputation for filing claims extremely quickly, if they did not send you a letter before action giving you a set period to comply (normally 14 days) then they have not complied with the Pre Action Protocols of the Civil Procedure Rules. The facts are as follows: In order for a debt to be enforcable a regulated agreement must be in place, it is up to the creditor to provide this agreement and it must adhere to the ACT and Regulations, if it does not or if an agreement does not exist the debt could be completely iredeemably unenforcable. In order for a creditor to formally demand the full balance and take any further legal action they must first serve a default notice to the debtor, this notice must also comply with the regulations and accurately state the financial details such as the 'sum due' to remedy the breach. Should no default of been served, or it overestimates the sum due it could be invalid and void meaning the creditor has no right to take this legal action. They claim a notice of assignment was produced and sent to you, do you have any recollection of receiving it? If not, and again it would be up to the creditor to prove one was sent by providing proof of postage then the claimant has no legal right to bring this action, as such the case should be struck out in entirety. You also mentioned the majority of the balance is made up of penalty charges, well this invalidates the default notice for a start, and gives you the option for a counterclaim for their refund, also as its not a bank account any counterclaim would not be subject to a stay pending OFT Test case. I think you should do the following: 1. Send a CCA Request, letter is drafted below. 2. Send a CPR18 request for information to the claimant in order to accurately file a defence. You would also request a copy of the credit agremeent in this request but the benefit of sending a CCA as well is that the Act states should the creditor not comply with 12 working days of reciept they enter into default and cannot enforce at all, which includes court action. ----------------------------------------------------------------------- CCA Request: When sending this letter you need to enclose a fee of £1, if possible try and use a postal order. Also, do not sign it simply print your name Dear Sir/Madam I ACKNOWLEDGE NO DEBT TO YOU OR ANY COMPANY YOU PURPORT TO REPRESENT Re:− Account/Reference Number With reference to the above agreement, we would be grateful if you would send us a copy of this credit agreement. We understand that under the Consumer Credit Act 1974 (Sections 77−79), we are entitled to receive a copy of our credit agreement on request. We enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act. We understand a copy of our credit agreement should be supplied within 12 working days. We understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act. We look forward to hearing from you. Yours faithfully ----------------------------------------------------------------------- CPR Request letter: REQUEST FOR INFORMATION UNDER THE CIVIL PROCEDURE RULES Dear Sir/Madam, I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith. 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 by the **DATE**, which gives you ten days to provide what has been requested. 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. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account. b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations c. 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 Barclaycard. d. 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. e. 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). f. 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. g. 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. h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money. i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998 j. 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. 3. Any other documents you seek to rely on in court. 4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006. 5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into. I will require this information within the next ten 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. I would appreciate your due diligence in this matter. I await your rapid response. Yours Faithfully, ----------------------------------------------------------------------- You can send both letters together, ensure you use the special recorded delivery service for the fastest delivery and retain proof of postage. You should also file an ackowledgement of service, make sure you do so before the 14 day deadline, this will then give you a further 14 days before you have to file your defence. We can prepare a proper defence for you once the claimant has responded to the CPR request, should they fail to do so the judge will take a very dim view. kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales

Ok Ironically thats good news! Those two types tend to yield the most non compliant agreements, if indeed any agreement at all. The first thing I would do is contact all the creditors by writing and send the following letter, Make sure you send them recorded delivery and enclose a £1 fee preferably by postal order to cover the cost of the request. Also, better not to sign the letter just print your name as many of these companies have been suspected of scanning signatures! Dear Sir/Madam I ACKNOWLEDGE NO DEBT TO YOU OR ANY COMPANY YOU PURPORT TO REPRESENT Re:− Account/Reference Number With reference to the above agreement, we would be grateful if you would send us a copy of this credit agreement. We understand that under the Consumer Credit Act 1974 (Sections 77−79), we are entitled to receive a copy of our credit agreement on request. We enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act. We understand a copy of our credit agreement should be supplied within 12 working days. We understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act. We look forward to hearing from you. Yours faithfully Each creditor then has 12 working days from reciept to provide a 'true copy' of the agreement, should they fail to comply you can withold payments until they do, should they provide an agreement that is lacking certain prescribed terms it could completely unenforcable. Send the requests out and keep track of the timelines, and if/when you get any responses post them up here so we can advise further. I know this will cost a small fortune in postage and fees, but it really is a great way of finding out where you stand, have a read through some of the many threads on here and you'll see what I mean. I should warn you though there will be a lot of paperwork to keep track off, would be a good idea to get some ring binder folders for storage, also you will need to set some time aside to read and post any details you recieve from them. It is a fantastic feeling though knowing you are being proactive with your debts and taking control of them. kind regards, shane

Hi Barneydouble, What are debts made up of, ie unsecured loans, credit cards , catalogue debts etc. I would first consider sending out CCA Requests to each creditor to ascertain whether they have a legal right to collect the debts or not, for the above debt types they must hold compliant regulated agreements in order to enforce any debt, without one the debts are unenforcable which gives you a lot more bargaining power in settling them. kind regards, shane

Hi Pupstermum, try not to worry to much, especially at this time of year. I know it can be very worrying when one receives a claim against them but in the majority of cases like these the creditor is hoping the debtor is not aware of their rights and will simply 'bury their head in the sand' so they can get judgement by default. They will not expect you to defend, and will get a pretty big shock when they see the letter Rory posted earlier! As Rory mentioned there are several options we can look at to resolve the situation Oh and just to clarify there is no fee to file a defence, the £35 mentioned earlier was in relation to an application to ammend your defence (N244) at a later stage should you need to. kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales

hiya, could you give us a little background to your debt situation, payplan are a registered debt charity and can be of enormous help in dealing with creditors, generally speaking though they only tend to commit if you can offer a minimum payment of atleast £200 a month, if you are looking to offer less than that I would recommend CCCS kind regards, shane

Hi Mogul, As previously stated you are doing all you possibly can for the moment, I would also keep a close eye on your credit report, DCA's sometimes get a bit Gun Ho and may try and register defaults against you, sometimes without even notifiying you! This is a big No no and can be rigorously defended with the option of a counterclaim for damages and defamation if you really want to get down and dirty! I really can't see any DCA escalating this through the courts however should you receive any kind of claim in the post post up details here and we can advise further, first point of call would be a request under CPR rules for all information they hope to rely on which in itself will most likely be enought o dissuade them from continuing. shout if you need any more advice kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales

Hi, The Regulations that govern form and content of credit agreements stipulate the Credit Lmit (being a prescribed term) can either be shown as a financial figure or a statement along the lines of 'we will notify you of your credit limit' which is stated under the financial details on the application form. I would send of the above letter posted ASAP and post up details of any reponse you get, should they fail to comply in the given time period the judge will take a very dim view regards, shane

Hiya, I've asked a MOD to move your thread to the Cabot forum, you'll find plenty of seasoned veterans there to contribute! The agreement they are relying on is a typical rapid reply, precontractual application form. As previously stated the lack of prescribed terms on an alleged agreement that falls under the remit of the CCA 1974 renders it irredeemably unenforcable by virtue of s127(3). With regard to the t&c's the Regulations are quite clear the prescribed terms and other key financial information should be on the agreeent itself, nowwhere does it state they may be found in a completely separate document titled T&c's, it says they must be shown clear and whole, and not interspersed with any other inforamtion. Further, if we look at case law set in Wilson v Hurstanger it strengthens the above: 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 section 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. For the reasons stated above I think the agreement is unenforcable. kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales

Hi and welcome to CAG, There have been a number of employees / ex employees etc here on the site and I for one always appreciate any insight you can provide. Keep in mind though not all members might be overly friendly! Could you perhaps let us know a little more about yourself, do you work in collections or similar role for Goldfish kind regards, shane

Hiya, Could you post up the Particulars of Claim they have stated. Since they have instigated a claim you now need to make use of the Pre Action Protocols to mount a defence, I would send them the following letter by special recorded deilvery: REQUEST FOR INFORMATION UNDER THE CIVIL PROCEDURE RULES. Dear Sir/Madam, I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith. 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 by the **DATE**, which gives you ten days to provide what has been requested. 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. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account. b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations c. 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 Barclaycard. d. 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. e. 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). f. 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. g. 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. h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money. i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998 j. 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. 3. Any other documents you seek to rely on in court. 4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006. 5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into. I will require this information within the next ten 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. I would appreciate your due diligence in this matter. I await your rapid response. Yours Faithfully, ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales

Hi Popeye1, It is quite clearly a precontractual application form, of that there can be no doubt. The problem is that it seems to contain all the prescribed terms and is signed by the debtor making it IMO broadly enforcable by virtue of s127(3) of the Consumer Credit Act 1974. However, there are still several other aspects here that we can call into queastion, when they sent you this document as part of the CCA REquest did the enclose a statement of account and the further t&c's it makes reference to? Also, did they enclose the details of the cancellation rights it makes reference to? (under your signature it says they will send exact details of how to cancel by post). If they haven't then they have not fully complied with their obligations under a s78 request, as such they remain in default until they do, while they are in default they are unable to enforce the debt in any way. Furthermore, they also have a duty to send copies of the agreement to you at the time it is opened, the requirements here depend on how the account was opened and executed, if they failed in that regard the debt could be completely unenforcable by virtue of s127(4) of the Consumer Credit Act. Also, at mentioned before this is quite clearly a precontractual application form, a CCA Request should yield a postcontractual agreement, as such it could be said this application form is merely a prospective agreement intending to bind you into an agreeement to enter into future credit, as such it could be void by virtue of s59(1) of the Act. Have a reead through the relevant parts of the ACt here - Home - Statute Law Database kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales