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marcander

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  1. One last thing, I bought and used Patricia Pearl's book "A Guide to Small Claims Procedure". Worth every penny. M.
  2. Here's something just found on Ministry of Justice Publications site. " Discontinuance and subsequent proceedings 38.7 A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if – (a) he discontinued the claim after the defendant filed a defence; and (b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim." M.
  3. Once again thanks to all for advice comments etc. It was only through self-education via this site and forum that I learned enough to go through with this. They started this claim in February and it developed like a game with strategies by both sides. My advice to anyone going through similar Don't be put off by bullyboy tactics and threats. know and learn your facts, rights and responsibilities. Although I had been paying under an informal payment arrangement for 10 years my defence was based purely on No CCa or statements of account. I did not dispute that the contract once existed but that the terms and conditions in that CCA were critical in me examining the claimants claim, it's origin and construction. During mediation when I first mentioned my 10 years payments I was asked to provide bank statements etc. I stuck to my guns and said that that is like asking me to do their homework. I insisted that the CCA compliance was critical for my defence considering that their only evidence was an unsigned internet application and a statement of truth. It is also the case as I learned on here that the claimant has to show his hand first (provide evidence) before you have to think about your defence. But the most important single piece of advice I can give is "Don't leave things, start your defence immediately by learning, posting your details on here, reading all the other similar cases and "ACT". The CPR rules are your friends. Use them. All you need to know is on here. I was amazed how this bulk handling centre is just like a rubber stamping office and if you do not defend or do something, then even claimants with little, scant evidence could actually win an unfounded case. I notice some mentions of costs? Not sure what they are or how to apply or even if. I am now looking at PPI claims from years ago and interestingly the internet application form in this case confirms PPI on the card. Also at the time of my demise in 2001 I had a m/card and a b/card both with PPI. I was self employed and at the time of my depression etc in 2001 tried to make a claim. I was refused. So, I'll be looking in to that. Thanks again to all. M.
  4. Today I received a letter from Arrooww. Attached is a court form filled by Arroow informing me that they have filed a discontinuance. I haved checked with the court and sure enough the court has received the notice of discontinuance and the court is refunding their £325 court fee. The claim is stopped and the hearing will not now take place. I think the only time I had doubt was when aroow paid the £325 for the hearing to proceed. I thought that they must be confident, and have I missed something. Knowing now that their fee is refundable if they do not proceed then obviously they will always pay it and take it to the wire, so to speak. The letter from Arroow still refers to the "debt" so they are accepting "unenforceability" but obviously still probably going to try and pursue what they believe is owed. Anyways, Thanks again to all. Appreciate all of the comments and advice. M.
  5. It never really occurred to me, but yes, if Moorcropp have been taking my payments and keeping them then EEgg have had no communication for 10 years and so it would have been SB'd. There's no reference to the original default etc or payment arrangement on my credit files as were are over 6 years from default. Anyways, we shall see what we shall see. M.
  6. A couple of weeks ago I agreed to telephone mediation provided by the courts. A mediator talks to me (defendant) and the claimant one after another. Neither of us can hear the other but the mediator relays each party's verbal evidence and points. When my reference to me paying Moorcrop every month for ten years from default and my ceasing to pay after non-compliance by moorcrop with my CCA request in 2011 was relayed to arrow, they said they were totally unaware that Moorcrop were involved in this anywhere along the line. Also they were unaware that I had been paying for 10 years to moorcrop "Egg". The only dca they knew about was Fredericksoons. They became involved after Egg refused to comply with my request and after many phone calls from freds and 15 letters they too disappeared after I had their unqualified "search by debt collection agency" removed from my credit file. thru the mediator arroow asked me to provide bank statements to prove payments. I refused stating that this was asking me to do their work for them. I was reminded many times in the conversation that Arrow were willing to negotiate a final settlement discount and payment arrangements even up to the date before the hearing/trial. I refused this kind offer and stated that in order to know my position and the case, if any, I have to answer I need to have (as per CC act 1972) the details etc and a statement of account to see how arrived at. I have made a number of requests from Moorcropp for CCA and received only one answer, " could not supply CCA at this time and no reference to statements requests, having never had one. Arrow had to pay £325 to court to proceed with trial and this they did on 12th October. They were so in the dark about moorcropp and my payments to them that they suggested to the mediator that it was a different account. We did however confirm the same account. Today I have received a GENERAL FORM OF JUDGEMENT OR ORDER saying that the claimant should by 4pm on 29th october serve on the defd and the court all documents they will be using or confirm to the defn and the court that there are no such documents or it will be struck out. Also that I am to do the same or my defence will be struck out. My evidence is my 5 requests to moorcropp for CCA and statements and their single reply to my last request saying their client eeeggg could not at this time comply but they stated that unenforceable could still be chased. Thereby admitting that unenforceable thru the courts. Oft states that threatening county court judgement knowing it cannot succeed is unfair. Thus could lead to licence eligibility problems. Also as above that no CCA means court action can be taken but cannot succeed. And as judge waxman ( I think) said " So they can take you to court, but they cannot win." I am in court on 7th November and I shall report back then. I will be interested in the meantime to see if any more documents arrive from Arrow. (Up to now I have had statement of truth and unsigned internet application form.) I will be sending my docs tomorrow. Comments as ever, appreciated. Many thanks M.
  7. This makes things a little clearer........... Landmark ruling on consumer claims A High Court judge has ruled that creditors need only to provide a reconstituted copy of original credit agreements, when they face consumer claims against debts. In a landmark claims management case at the High Court, Judge David Waksman clarified a number of points over the enforceability of consumer credit agreements. He upheld that banks can enforce debts even if the original agreement of the loan or credit card has been destroyed and that a creditor can fulfil its duty, by providing a "reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself." Judge Waksman decided that these other sources could include other data held by the bank about their customers, and it could be recreated by drawing on the standard terms and conditions that the bank applied at the time. He added, therefore, that if the creditor does not have the original executed agreement, this is not itself a "bar to compliance" with the Consumer Credit Act, because of the other sources that can be used to provide a reconstituted version. But he also stated that if a creditor could not supply a copy of the loan agreement at all, then this automatically prevents them from using the courts to chase a debt until they provide one. A copy also must contain the name and address of the borrower as it was at the time it was signed. The case in front of Judge Waksman was one of six test cases from which it is hoped that clarity would be provided on how creditors can ensure they are compliant with the CCA, when they face claims from consumers that their debts are unenforceable. Under section 77 to 79 of the Act, lenders must supply a copy of the credit card or loan agreement to the borrower when one is requested, but there were ambiguities over what constituted a true copy of the agreement and in what form it should be provided. Some claims management companies had argued in the courts that debts were not legally enforceable if an acceptable copy was not provided, because failure to provide one did not comply with the Act. But Judge Waksman upheld that the purpose of obliging lenders to provide a copy of the agreement as not to prove that the agreement was fully compliant in the first place, moreover that it should provide the consumer with information about the state of the account. But he also said that creditors could not invent the loan agreement retrospectively to comply with the Act. He added that the copy of an agreement must be honest and accurate and must be based upon records held on the debtor and the agreement originally struck with the debtor. Source: Credit today M.
  8. There seems to be a fine line between "bringing an action" and "going through with it". Quote from "OFT" 5 SANCTIONS FOR NON-COMPLIANCE23 5.4 While Flaux J agreed with the decision of HHJ Simon Brown QC (sitting as a Deputy High Court Judge) in Tesco Personal Finance v Rankine 27 that commencing proceedings was not enforcement, but a step taken with a view to enforcement, both he and HHJ Simon Brown appear to have been drawing a distinction between commencing proceedings and entering judgment in those proceedings.28 29 5.5 Importantly and further to the specific interpretation of the statute, the OFT considers that in taking any such steps, a creditor should in no way, either by act or omission, mislead a debtor as to the enforceability of the agreement. To do so would be an unfair or improper business practice and would be highly relevant to a creditor's or owner's fitness to hold a licence under the Act. It may also be an unfair commercial practice under the Consumer Protection from Unfair Trading Regulations 2008 and 26 Paragraphs 74 and 75 of the judgment. 27 [2009] C.C.L.R. 3. 28 Flaux J considered that 'unenforceability' under the Act was a barring of the remedy, not an extinction of the right. HHJ Simon Brown QC considered that the appropriate response to a failure to provide information under section 78 during the course of proceedings was to "apply to stay the proceedings". 29 Note: This section of the Guidance describes the analysis in relation to unenforceability outlined in recent High Court judgments. The OFT will review this section should there be any further clarification of the consequences of an agreement being unenforceable that may result from future cases. OFT1272 | 23 attract enforcement proceedings under the Enterprise Act 2002. An obvious example of this would be threatening court proceedings when aware that a judgment could not be obtained because sections 77, 78 or 79 cannot be complied with, without also making that clear to the debtor/hirer. 5.6 It should also be noted that the court in McGuffick was dealing with the issue of enforceability under section 77. The court expressly distinguished the situation where the agreement was improperly executed at the outset, and accordingly the creditor's rights were always restricted.30 5.7 The principles of enforcement action in this area are judged by the OFT to be similar to those applying to statute barred debt. If sections 77, 78 or 79 cannot be complied with so the debt cannot be enforced in the courts, this does not mean that the debt disappears, and it is perfectly acceptable for a creditor to seek to pursue the debt. It is also acceptable, in this context, to register accurately any arrears or default with a credit reference agency. "However, if they were to threaten court action, knowing that judgment will not be possible and that therefore court action will not actually be taken, this would be judged by the OFT to be misleading and oppressive." 5.8 In particular, where an agreement is unenforceable because of noncompliance with an information request under sections 77, 78 or 79, the OFT's guidance to creditors or owners on this issue is as follows: • The OFT would firstly expect the creditor or owner to take steps to check that there was in fact an agreement with the debtor or hirer, and in particular whether there are in fact monies outstanding under it, and if so for how much. This should be capable of being demonstrated to the debtor or hirer. 30 Paragraph 70 OFT1272 | 24 • Secondly, no communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it will not be entitled so to enforce the agreement. • Thirdly, the creditor or owner should make it clear when communicating to the debtor about the debt that the debt is in fact unenforceable. Failure to do so, where the creditor or owner is aware of unenforceability, would in our view unfairly mislead the debtor by omission. 31 • Any communication that implies expressly or otherwise that the debt is enforceable when it is known that it is not would be misleading. One way to avoid this would be for the creditor to explain the full meaning of 'unenforceable'. "So," he said, sarcastically "they can take me to court but they cannot win?" I have copies of my written recorded delivery requests under CCA 1974 to Moorcropp (the then DCA) from 18 months ago and they quote a case that refers "although this account is deemed unenforceable". I was starting to lose a bit of confidence in this but even now I could complain to the OFT as their actions could amount to limiting their ability to hold their licence. Comments again appreciated M.
  9. I was thinking of sending a SAR to aarrroww to see what docs they actually have. However I understand that because they have produced only an unsigned application form and a statement of truth, no CCA no statements to back up any calculation, then that is all they can offer as evidence in court. So, if a SAR produced documents then the court may not accept them as our courts do not allow suprise witnesses and documents suddenly produced. So, there seems little point in that. Judge Waksman said that the CCA does not have to be the original but in the absence of even a correctly reconstituted CCA then court action is not possible to enforce the debt. "Judge Waksman decided that these other sources could include other data held by the bank about their customers, and it could be recreated by drawing on the standard terms and conditions that the bank applied at the time. He added, therefore, that if the creditor does not have the original executed agreement, this is not itself a "bar to compliance" with the Consumer Credit Act, because of the other sources that can be used to provide a reconstituted version. But he also stated that if a creditor could not supply a copy of the loan agreement at all, then this automatically prevents them from using the courts to chase a debt until they provide one. A copy also must contain the name and address of the borrower as it was at the time it was signed." I also understand that because my original CCA was from 1999 then it is subject to rules and guidelines from that time. What about me complaining to the OFT? Any thoughts on that and maybe a complaint to FSA. My understanding is that a creditor should not threaten court action if he knows that a court cannot make a judgement in that particular case thus he is threatening action which he "knows" cannot be taken. Also is it worth me sending yet another CCA request to Arrooww? If Arrooww pay the £325 fee by 12th October then the hearing will go ahead and I am happy to attend. However, reading Surfaceagents PT2537 What to do if you are being sued and there are references to the judge saying to a defendant "why did you let it get this far when there is no case"? so I don't want to miss anything that I should be doing now. Any comments appreciated, Kindest regards to all M.
  10. I have been reading a guide on the forum written by surfaceagent and it appears that it might be to my advantage to CPR the claimant again asking for the CCA and statements of account to compel them to disclose documents. If these docs are not forthcoming then I may ask for a strike out or set aside. That the case may be unwinnable from the claimants point of view. M.
  11. No I havn't done a SAR as it was difficult to decide who to SAR to. Original creditor was of course EEGG then Moorcrop "handled" on their behalf and took my 10 years post-default payments then Barclaycard took over and sold to Arroow and that's where I am today. Andy I havn't had an N170 yet. I will revise my position on the stay. Thinking again I will know by 12th October if they have paid their fee or not and that should give me an idea of how serious they are as to whether they think they can win. But getting back to basics, there are restrictions on what a creditor can do without a CCA and a set of statements. All of the advice I have seen on here and on other debt advice forums and also on OFT and ICO sites are adamant that the original CCA or a copy with prescribed terms and statements of account are essential requirements for successful court action. All of my formal CCA requests to Moorcrop and Arrow and requests for evidential docs by the court have produced only an unsigned internet application form. Where is their proof? Where is their evidence of that amount? Surely I can only be expected to defend a properly executed and evidenced claim, and only after the claim is proven. They started the claim so the legal onus is on them to offer a viable case before I have to file any defence to it? I am fairly confident of my legal rights it's just laying them out in the correct sequence and hoping that the court upholds my rights under the CCA 1974. As this account is pre 2007 and 2004 then I understand that it falls under the CCA 1974 directly. M.
  12. I have now received my court date for November. The case has been allocated 2 hours. Apparently the claimant has to pay a fee of £325 by 12th October for the case to go ahead. There is a clause on the court notes that says I can apply for a stay of proceedings for a fee so that I think, is what I will do. I intend to apply for a stay of proceedings until the claimant provides me with a copy of my CCA and a statement of account so I can see the case I have to answer. All I have had as yet is a copy of an internet application form unsigned and a statement of truth. I do not deny I had an eegg credit card but I do deny that I still owe a debt after making monthly payments continously on an informal payment arrangement for 10 years. Any comments / suggestions welcome. Many thanks M.
  13. Because, until recently I wasn't aware of CCA regs etc. I stopped paying beginning of last year when they could not comply with my CCA request. The debt has gone from Eggg to Moorcrooft then to Barclayys now to Arroow global who started court claim in February this year thru Bryann Cartter solicitors. Then Bryan carrter stopped dealing with the case and they are dealing with it through the legal admin staff, "paralegal". I am defending the claim with the help of the forum on another thread. But, going back to the op, my crdit files were a mess until exactly 6 years after default dates when everything dropped off. No reference to any defaulted debts can be made on CRA files after 6 years, paid or not. M.
  14. Just to clear up a few points. And I have personal experience of this. Cra s are exactly that.. ..Credit Reference Agencies. If the "debt" is not/was not ...credit....then it cannot be reported on a credit reference agency file because it is not credit. So... a debt to, for instance DWP was at no time a loan or credit ( I am talking here about income support and the like, regular weekly or monthly benefit payments not a crisis loan or anything like that) and so although it is a debt it was at no point credit. Also, credit reference agencies have to abide by the guidance of the OFT and the Information Commissioner's office and that states, quite clearly, "All reference to a defaulted debt must be removed from the credit files 6 years after the date of default." This is the case whether paid off completely or not at all. This is so that someone who pays something and still owes after 6 years is not disadvantaged by someone who cannot or does not pay anything and has the debt removed from the files after 6 years. Statute barred i.e. debts for which there has been "no communication between creditor and debtor" for 6 years are automatically removed from all credit ref agencies once they are statute barred. Both "statute barred" and "over 6 years from default" debts cannot ever be re-entered on your credit files. If they are ......complain. I have done it......and they were removed. I am fighting a county court claim at the moment by a company that bought my debt I have been paying an informal arrangement for the last 10 years to a DCA but no records, statements or copy Consumer credit agreement have ever been supplied. They had some black marks references to the debt put on my CRA files. I had them removed with one email/phonecall. Don't give up. M.
  15. Have done just that. They said it was because the claimant had changed their claim. I may therefore want to add or change part of my defence. so, the judge has ordered that another Alloc Quest be sent out. In between the 1st alloc quest and this one the judge ordered that we both file full partics of their claim and my defence. the other side served and filed a copy of the internet application form and their Statement of truth. nothing else. I filed and served my defence based on no CCA. No statement of account ever, since default 11 years ago and requested stay of proceedings until they supplied me and the court with CCA and statement of account. My reply now within the alloc quest will be the same as the last one. The court said today that because claimant had changed something in claim everything had been put back a step. So, we shall see what we shall see, thanks again all. Quite interesting isn't it? M. X
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