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fdpm

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fdpm last won the day on April 7 2011

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About fdpm

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  1. Hi not been on here for quite a while as thought all the dcas had finally gone away - only to receive today a notice from Hoist regarding old HSBC loan The first paragraph of the letter is as follows. " We are writing to notify you that MKDP LLP has assigned all of it's respective rights, titles and interest in respect of the above referenced account (Ex HSBC) to Hoist Portfolio Holding Limited effective 26/10/2015. The total balance sold they say is £25,392.20 but curretn balance £25082.20" I stopped paying this back in 2008 due to financial difficulties and although over the years received various DCA chasing letters have had no contact with any of them. Is this statute barred and if so, do I need to do anything? Or do I need to prepare for a court battle? Can anyone advise please? Thank you
  2. Don't panic - if you have put in a solid statement for your reasons, it is quite likely the dj will have the matter set aside, or will set a date for the hearing. From what I've read on your thread you have solid grounds for your defence. Don't worry. It will be okay... just have faith.
  3. Good luck Iman, the leeds losers recently tried it on with me with one of their dodgy SDs and my judge threw it out as an abuse of process! If you are lucky on the day and get the right judge it means all the difference - they are NOT supposed to be using SDs for Consumer Credit related debts... make sure you report them to the OFT too.
  4. Hello barbara 1950, in response to your question, it isn't so much about whether or not I owe the money so much as whether or not they actually own the debt. My original creditor was a bank... it isn't the bank who were trying to make me bankrupt. My defence hinged around the facts that no copy of my credit card agreement was produced, no default notice was ever issued by the bank and finally, the dca had never sent me a properly drawn up Notice of Assignment - on top of all that, using a Stat Demand is an abuse of process for a matter relating to the CCA 1974 and lucky for me, in my case, the judge made that very clear to the debt collection people and threw the case out of his court with no leave to appeal! If you read around the forum on threads relating to SDs I am sure you will soon see plenty of examples of defences. If you have a case running yourself and would like to see my defence, just let me know and I would be glad to pm you.
  5. Don't worry about the serving of it - just start getting your defence ready... I was served via my partner! I was in court just a couple of weeks ago with an SD from Lowells/Hamptons and the Judge I got was brilliant and set it aside - however, you can't always depend on the Judge - previously I had one who was on the side of the creditor... so - I would suggest you do some reading about SD's on here and then prepare your application to have it set aside. One point - once you have been to court and signed your affidavit - make sure to ask the court if you have to send a copy to Lowells/Hamptons! I didn't and the Agent that turned up at Court tried to get it adjourned because of it - luckily, I had a good Judge who dismissed it all because of it being an abuse of process. Good luck
  6. Thanks 42Man - the main reason I think we should find out is that when she pounced on me in the waiting room, she was threatening that she was going to ask for an adjournment of the hearing as she had been advised by the claimants that I hadn't submitted a defence and she only found out when she got to the court and asked. I personally think it was their way of trying to delay things because surely they must have realised I had submitted an affadavit when they got the notice from the court about the hearing date? Anyway - Thank God, in my case anyway, I got a different Judge this time because I know for a fact that had I got the same Judge as before, he would more than likely have listened to her and agreed with everything she said... he wasn't a very nice man... and my not having sent them anything could have scuppered me on the day - whereas, the Judge I did get, read through my affadavit and questioned why the claimants were chasing a credit card debt with a SD... phew! I think it is someting we maybe need to find out in order to help others... ??
  7. Just a quick question to all of you knowledgable CAGGERS - the Agent was really miffed that I hadn't sent them a copy of my affadavit... Can anyone confirm/deny whether or not one is supposed to send a copy to the person who has issued the SD? The agent said she had asked the court and they had said that I should have sent them a copy... but I am pretty sure that last time I had an SD that I never sent the other side anything?? Just thought it is one of those questions that no-one seems to have ever asked! Thanks
  8. Hi all - Just got back from the Court... The other side had sent an agent along who pounced on me... said she was going to ask for adjournment as I hadn't sent them (the alleged creditors) a copy of my affadavit. Anyway - got called in and the first thing I noticed was that the Judge was different one from last time... so that made me feel less frightened... the Judge was reading my defence. He asked me if I had produced it myself, so I said yes with the help of research on the internet... he said it was well written and suggested that perhaps I should be a solicitor, so I just said Thank you Sir... The Agent launched into a blurb about her not having the affadavit - he told her it didn't matter because the SD shouldn't have been issued in the first place as the matter should be dealt with through CCA channels - she argued with him and he basically told her that if she wanted to go to the higher courts and challenge it she could but he didn't agree and was setting the SD aside... she then asked if she could appeal and he said she could but he then wrote down, 'no leave to appeal' and then when she asked for costs, he said no, and wrote that down too. I didn't really say anything else. I didn't ask for costs because I was too happy that he had thrown it all out!! Thank you for all your help, especially 42Man!! Another donation coming your way from me.
  9. Big day tomorrow... frightened but keeping fingers and toes crossed they don't show up! Lots of prayers tonight please? Will report back tomorrow...
  10. Hi Have recently received bundle of papers from Bryan Carter in response to CCA request and not sure if the CCA from Egg is actually an agreement or an application form posing as an agreement? It was taken out online back in 2005 and starts at top of page saying it is a CCA regulated by the Consumer Credit Act 1974. Under a heading Key Financial Information it has the following: 1. Credit Limit - some blurb about them sertting and telling me the credit limit from time to time 2. Repayments - about minimum payments 3. APR 4. Interest 5. How repayments used 6. Total Charge for Credit 7. Charges Missing Payments A bit to read about my rights Theft, Loss or Misuse A box saying about sign it if you want to be legally bound - with a tick and date Another box with a tick saying Signature of Lender and date Then it says - by submitting this Agreement to us, you confirm that you want us to issue you with an Egg card .... They have also sent me pages and pages of screen prints that state Legal Information - I will try and copy these up if needs be, but just wondered if anyone could give me some advice?? Thank you
  11. I hear you but still scared. Feel annoyed with myself for not demanding CCA earlier - but with all the problems we had last year with the paerents, I just never got around to it. If the court finds in their favour - does anyone know what happens nex?
  12. Just found out will have the same judge as before and he wasn't very nice... so now dreading next week!
  13. Hi Am in court next week and now beginning to feel a little bit scared. After reading many more threads on here am now thinking I have done it all wrong. My logic tells me not to worry as even if the judge thinks they have a case. all I would probably need to do is make an offer of £1 a week (is truly all I could afford) but my impending sense of doom head tells me they will make me bankrupt, I will lose my home and end up sleeping rough! I know it all seems crazy but I am scared and not sleeping very well. I really hate all of this. I didn't deliberately set out to be in debt. I tried and managed for many years whilst working in a good job to pay all of my debts but after losing my job and moving to help look after my partner's parents, it all spiralled out of control. I wouldn't mind but when I add up the full amount of monies I paid to the credit card companies over the years in interest.... it makes me feel sick. Yes, ok I spent money on credit but only because we were all encouraged to take out the damn cards and they were all up for increasing our limits! Sorry. Rant over. I feel sick to my stomach.
  14. Hi Received a letter in early part of the year threatening legal proceedings if no response so sent them a CCA request. Two weeks later received another letter from them offering me a reduced settlement! But no sign of CCA Today, 3 weeks later have received a letter in acknowledgment of CCA request saying it would appear that my address differs to the one which is shown on their records!! How can this be when they have already sent the previous two letters?? They're asking me to send passport or driving licence to confirm it's me... Any suggestions> I thought of just copying the previous two letters and sending them with this one back to them?
  15. Hi, This is the defence I am submitting for the SD - if one of you experts could take a quick look over I would be very grateful? Thanks The debt is totally disputed The alleged creditor is claiming payment of three sums being the balance of monies due against different credit accounts numbered xxxxxxxxx, xxxxxx & xxxxx and I have no knowledge of any of these accounts. The alleged creditor has provided no Default Notices in accordance with the Consumer Credit Act 1974 which states that in order for it to be valid; the Default Notice must be in the prescribed manner and be correct. Notwithstanding the above, it is also drawn to the courts attention that no Default Notices required by s87 (1) Consumer Credit act 1974 have been attached to the petition. It is denied that any Default Notices in the prescribed format were ever received and the Defendant puts the Claimant to strict proof that said documents in the prescribed format were delivered to the defendant Notwithstanding the above points, I put the claimant to strict proof that any Default Notices sent to me were 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) Service of a Default Notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a Default Notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without any valid Default Notices, I suggest the claimant’s case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974 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 an 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 REFERENCE TO CASE LAW As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that: ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’ SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40 The Wilson case made it clear that in the event of no acceptable Consumer Credit Agreement then the creditor could not recover monies owed under ordinary contract law regardless of whether they could prove the debt existed or not – this was the decision of the House of lords and should therefore be binding in this court The law states that without a prescribed agreement the courts may not enforce under 127(3) and 1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:- “Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.” 2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:- “The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;” I also refer to Lord Nicholls of Birkenhead in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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 alleged creditor has not provided any legible copies of the agreements referred to in the demand. I received a letter from the alleged creditor dated xxxxxxx in respect of a Data Subject Access Request in which they stated: “We would like to clarify that the data you will be provided will only relate to the original accounts purchase details...” which infers they do not have any information held relating to the original accounts and therefore infer that they cannot supply me with a copy of any statements or agreements relating to the demand. I believe there are no properly executed signed Consumer Credit Agreements. If they had been able to supply these agreements then they would have done so already in order to avoid slipping in default under section 78 (1) of the Consumer Credit Act The defendant has not been provided with any statements for the duration of the alleged agreement (it not being uncommon that some debts are made up entirely of charges) The Defendant denies that she is liable to the Claimant as alleged in the demand at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied. That is inaccurate, W.F.Harrison and Co Ltd v Burke [1956]. The defendant requires sight of the Notice of Assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. The reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents, the defendant notes that if there are errors in the assignment it may be rendered ineffectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169 I have never received any Notices of Assignment according in all respects with s136 of the Law of Property Act 1925 I respectfully submit to the court that steps to ensure service of a Notice of Assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service. Since the claimant explicitly states the notices were “served” it is assumed that this was done via the postal service. The requirements for service via the post are Law Of Property Act (1925) s196 . Regulations respecting notices. (4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. It is noted that the claimant has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served I did not receive any Notices of Assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not. To the best of my knowledge, any Notices of Assignment sent by registered post must, therefore have been returned to the respondent. Consequently, I do not believe that any Notices of Assignment were properly served upon me at the date of the demand, and therefore any assignment has not been perfected in law. I gracefully request - The Judge dismisses the demand on the above evidence. The Judge order the claimant to delete all adverse information held on my credit files. The Judge orders the claimant to pay my full costs in light of the distress and damage to my family and to make an indemnity award In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:- Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:- 27. So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner). I believe the facts herewith in this form are true.
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