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user56565

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  1. Hi All Need some advice. Amex do not have an enforceable agreement for an account I hold/held (it is signed by me but without the prescribed terms. s61(1)(a) and s127(3) apply). Morality aside, I would like to: • Get the debt written off • Get all information relating to the account removed from my credit reference files (e.g. defaults) How can I achieve this? I have a reasonable understanding of some of the legal issues but very little experience in applying it or going to court. I've asked my DMP provider to cease payments and I guess my starting point is to draft a letter to Amex. Thanks
  2. I recently submitted a CCA and Subject Access Request to American Express. I got back an application form which is signed by me but without the prescribed terms. The agreement is unenforceable under s61(1)(a) and s127(3). Morality aside, I would like to: • Get the debt written off • Get all information relating to the account removed from my credit reference files (e.g. defaults) The outstanding amount includes unlawful charges and interest. There is also an ongoing FOS complaint. I'm currently on a DMP (however it's going to take a very, very long time for me to clear all my debts) and Amex have instructed AIC, who are accepting payments. I should be grateful if someone would provide me with some guidance on doing this (e.g. your experience if you've been successful, letters you have sent, general advice, etc). Thanks
  3. Anyone? Should we be applying for the case to be struck out / dismissed etc? What about civil restraint orders, etc? I have very little experience regarding court processes so I I'd be grateful for any tips you can give. Thanks
  4. Thanks. Called the court. They said that Asset Link had 33 days to respond following our defence and they hadn't (this was a year ago-ish). Therefore the claim has been stayed. I don't think it has been transferred to our local court. Does this make sense? Not sure what our next steps should be. We just want to get rid of the claim and prevent them from making future claims.
  5. This thread has somehow ended up in the Capital One section. Please could a moderator move this into the 'Debt Collection Industry ' forum?
  6. Thanks As a brief summary for those reading this, Asset Link purchased a debt off GE Money and took court action within days. We sent a CCA request and information request to Asset Link. We also filed a defence (see above) on time in Sept 2007. Since then, we have heard nothing from the court and Asset Link still haven't sent the requested information. Within the past few days however, we have received a letter from Asset Link stating some basic information about the debt and asking for repayment proposals. Need some help: 1. What's the likely situation with the court claim i.e. is it stayed or something? 2. What does that mean in terms of future claims on the debt i.e. can the claim be restarted or a new claim issued for the same debt? 3. Can we claim costs in defending the claim? If so, how? 4. Their behaviour has been appalling and clearly unfair. What action can I take to ensure something can be done about it? How do the Fraud Act 2006 (see earlier post) and those new regs apply, and how can they be used against Asset Link? 5. What are the next steps, if any, in trying to get the defaults removed and the debt wiped? Thanks
  7. All I know there hasn't exactly been much interest in this but I thought I'd post an update nonetheless. It's gone to the FOS and an adjudicator, in his inital response, indicated in favour of the company. As I think his judgement was flawed, I have written back and am currently awaiting a response. The OFT guidance seems to strongly suggest the term is unfair and so I will be pursuing this. If anyone has had success on a similar issue, please let me know.
  8. Thanks guys. Relieved and it was a good experience to see how the whole process works. To be honest, I wasn't expecting the other side to turn up and so I felt reasonably confident that we would win. If anyone reading has to go through this, make sure you ask for costs at the hearing! We wouldn't have got anything if we hadn't asked.
  9. Well it seems they've used the right form etc. Its entirely up to you bout the default notice - IMO its not necessary but if you word it right, no harm in putting it in the application. Good luck, let us know how it goes.
  10. Santos I've read the post you left on my thread at: http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/86067-getting-statutory-demand-set.html As you know, I successfully set an SD aside with the help of others in this forum. My advice to you would be: 1. Don't panic - you have 18 days from service as Tomterm said. 2. Despite the creditor saying things are on hold, they won't be for this SD as it has already been issued. Set it aside now. 3. You need to use forms 6.4 and 6.5 to set the SD aside. 4. You can get word documents to fill in if you like. Check here: England and Wales Forms 5. When you fill in 6.5, under (b) you fill in the date you actually received the SD. 6. When filling in 6.5 ©, use the draft wording that I used. I see you have already done this in your post at 20:56. 7. Regarding that post, I don't think it is necessary for you to mention the default notice. The creditor obviously hasn't got the agreement and mentioning the defaulted CCA request should be enough. If you still want to mention the default notice, insert "section 87 of" before "the consumer credit act 1974". 8. You will need to sign it at the court. I wasn't charged a fee for setting aside the SD but the judge was a little surprised at this. Take your £65 with you incase. 9. Do exactly as the court says, and call up every now and then to see what's going on with your application. 10. You can read more about the court process for doing all this under the Civil Procedure Rules for Insolvency, particularly parts 10-13: CPR INSOLVENCY If you can answer the following, we may be able to help further: 1. Where did the debt come from (marbles loan/credit card)? 2. Has the debt been sold to anyone? 3. Who has issued the SD? 4. What form is the SD? Read the top of it and any numbers it may have on it.
  11. IT IS ORDERED THAT: 1) The applicant attending but no attendance by the Respondent 2) The Statutory Demand be set aside 3) The costs of today be assessed at £50.00 and payable by the Respondent to the Applicant by the xxth xxx 2007. Thank you all for your help, especially Tomterm who provided draft documents etc. Now to wait for the money to arrive!!
  12. Tomterm - you're brillliant. Thanks so much for helping me out so much in both my threads. Questions for you/anyone: 1. How do you attach documents to an online defence? Do the documents need to be in a particular file format? 2. When could I expect to receive an allocation questionnaire and how long do I have to submit a reply? (Going on holiday in near future) 3. Do I need to send the claimant a copy of my defence by post? I refer to CPR 15.6. DRAFT DEFENCE 1. The defendant does not admit or deny the debt or any of the other allegations contained within the Particulars of Claim, and insists that strict proof is provided by the Claimant. 2. I object that the claimant’s statement of case is insufficiently particularised and does not even attempt to comply with Civil Procedure Rules (“CPR”) Part 16 (particularly supplementary Practice Direction 7.3). In this regard, I wish to draw the court’s 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 written agreement referred to or any default notices issued or any other matters necessary to substantiate the claimant’s claim. b. A copy of the following documents that the claimant cites in the Particulars of Claim, and which appear to form the basis upon which these proceedings have been brought, have not been served attached to the claim form: i. purported written agreement ii. purported document or contract of assignment iii. purported default notice (under s87) along with proof of postage or receipt iv. any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account 3. Since the Particulars of Claim do not state what type of regulated agreement the Claimant alleges I have defaulted on, I submitted to the Claimant a formal demand under section 77 of the Consumer Credit Act 1974 (“The Act”) requiring the claimant to provide true copies of the alleged regulated credit agreement and all documents referred to therein. The request was sent by Royal Mail Special Delivery on xxxxxxx with the statutory £1.00 fee enclosed, and a copy of these documents is attached. The Claimant has refused in writing to furnish the requested documentation, and a copy of their letter is attached. As the Claimant hasn’t complied with this request, any alleged agreement would be unenforceable by virtue of section 77(4) of the Act. 4. Further to paragraph 3 above, I included with my s77 request a written request for a copy of the alleged credit agreement as well as other important information in respect of the account referred to by the Claimant such as details of any fees and collection charges levied to the account. The requested information is essential to enable me to file a full defence and/or counterclaim. The Claimant was advised that as this matter was subject to legal proceedings, the information requested must be furnished within 14 days. The Claimant has as yet failed to comply, and I respectfully request the permission of the court to amend this statement of case if this information is forthcoming. A copy of my request letter is attached. 5. The Claimant has not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons. The Defendant does not know that the case has to be met and the Particulars of Claim do not disclose any cause of action with any reasonable prospect of success. 6. The claimant has made no attempt to avoid litigation and made no indication that legal action would be considered or taken and has therefore failed to comply with the Pre-action protocols (in particular Rule 4.2). Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970. 7. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out pursuant to Part 3.4 of the CPR as either: a. disclosing no reasonable grounds for bringing the claim b. an abuse of the court’s process c. failing to comply with CPR Part 16 and/or the Pre-action Protocols. 8. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraphs 3 and 4 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and/or counterclaim and will seek the courts permission to amend my statement of case accordingly. 9. Further to paragraphs 8 and 9 above, the Defendant respectfully requests that the court considers the Claimant’s conduct both before and during proceedings and whether the Defendant’s costs would be payable by the Claimant under Rules 44.3 and 44.14 of the CPR.
  13. Thanks all for your input. Josie 8: I'm now thinking that I should not bother writing back - they waited two whole weeks just to say they're not going to send the agreement. The 4 weeks (excluding the extra for postage) is about to expire. The Fraud Act is going to take a while for me to go through but certainly seems worth the time. Nailpost: They are claiming the entire amount. It's stupid because the OH is now on a DMP with CCCS. Prior to the DMP, she has been paying a pro-rata amount every month. These guys have initiated court proceedings within two weeks of purchasing the account and made no indication they would do so. Tomterm8: I won't be sending the signatures and proof of ID. I did request the disclosure letter - I think it's one you've drafted in another thread. Thank you for that! After some searching on Sunday, I found a few defences dotted around on the threads and have started drafting one. Is it worth me posting it up here or will it allow asset link to identify me etc??
  14. Asset Link have replied to our CCA request stating: 'we are unable to send you a copy of the signed credit agreement as your letter indicates you deny knowledge of the debt and could possibly have been subject to fraudulent use of your details' They provide some other information relating to the agreement and then state: 'if this information does not clarify matters we will require from you a copy of an official document showing your signature eg passport, we would also ask for 6 specimen signatures on a blank sheet of paper to enable us to investigate further' They have also completely ignored our request for information. Do I reply to this letter?
  15. Thanks for the responses. We went online and filed our acknowledgment very recently. We have also called the court and been told the date by which we must file our defence. On the assumption that I will not receive any more info (or any new info) from the creditor, I would like to start preparing a draft defence. Could someone provide some links to defences that have been used before?
  16. Thanks TomTerm for the response. It all makes a bit more sense. Court documents were filed yesterday. Will let you all know how the hearing goes next week!!
  17. Tomterm8 and others Thanks - I found that excellent thread of yours a little earlier. Haven't had a chance to fully digest it all though. (a) - yes it seems they did (b) - there are only two signed applications/forms. as the date of the claim matches neither, i can only guess which form supports it. it would seem that the bloke took back the first form on date A, rang First National to get it approved on date B, realised the errors in the form, and came back with an amended form on date C. If form 1 is relied upon, then none of the numbers would add up right and it should get struck out as unenforceable. if form 2 is the supporting one, then: > the agreement was made before the application - surely invalid or something? > im pretty sure they couldn't produce the original in court. so could they rely on a copy instead??
  18. TomTerm8 - sorry about this but I'm confused. Are we supposed to submit items (a) and (b) directly to the court?? i take it (b) is just a summary of what we are wanting ie a set aside, and therefore along the lines of the original application? i take it (a) is meant to be like a draft order that we would want the court to send out. is my understanding correct?? So your earlier post of 14th June 11:48 is the summary for (b)? I do not understand all of the points in the directions you posted: > There is an item beginning 'in respect...' in between e and f, is that also meant to be bulletpointed ie point f?? > The directions seem heavily skewed toward the claiming of bank charges, does this matter or should it be submitted as is? > It states that if the applicant fails to comply with the order, the application will still be granted - is this correct? > Do I need to shrink the directions as the judge has allocated just half an hour for the hearing?? I had until now just assumed the judge would set aside the statutory demand on the day of the hearing?
  19. Hi Guys The OH received a court claim form (N1) late last week from Asset Link Capital. This is the first time either of us has had to deal with the court process so I would be grateful if any of you could provide help. I have provided lots of data, so apologies for the long post, but it will probably all be relevant. PARTICULARS OF CLAIM The Defendant(s)are indebted to the Claimant under the terms of a credit agreement dated xx/xx/xxxx, and assigned to the Claimant. The Agreement is regulated by the Consumer Credit Act 1974. The agreement provided that interest would be payable before and after a Judgement. The right to proceed for subsequent interest is reserved. Default occurred in payment and the loan was called in under S.87. Amount claimed: [Just over 5 grand] Court fee: £240 Solicitor's Costs: £0 Signed by Claimant [ie no solicitor] .....[some information removed whilst action in progress]..... THANKS FOR ANY HELP YOU CAN PROVIDE!!!!
  20. Hi Guys Thanks for the replies. Just an update. AIC sent a letter on xxth June chasing payment and threatening that agents would visit our premises. Note this was whilst the whole debt was in dispute and before we received the court's order (on the xxth June). We have heard no more from AIC, and Amex instructed Newman instead, around the end of July. They have threatened to send agents round, and have sent letters demanding payment etc etc. We have ignored them as the account is awaiting a court date. OH is going onto a DMP shortly (one of the free ones) and has been advised by them to not correspond with either DCA or OC. In their opinion, as a new DCA has been involved it is unlikely anyone will show up on behalf of the creditor at the hearing. OH called the court and asked whether she would have to discuss the hearing with the creditor. The court official said that if she felt threatened and intimidated by them, then she could just submit the proposed directions and attend the hearing. As such, we have not sent out SARs, CCAs, etc. We will be submitting the proposed directions as per TomTerms draft above. I will post updates as the hearing approaches in just over x weeks away.
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