DLC/Aplins Claim Form - Old Citi card 'debt' default judgement now want CO too!! **CASE DISMISSED VIA NO CCA**

[Grad98]

Hello all - just a quick update.

 

 

Went for the CO hearing today and it was adjourned.

I dont know if thats a good or bad thing!

 

 

one of my points I raised in the objection letter was not all the creditors had been informed so DLC would be unduly prejudiced.

 

 

The lawyer from DLC was spluttering in anger

- I almost laughed!

 

 

He kept on saying well this is the list we had.

And I told him well your list is inaccurate.

So the judge adjourned it in order for DLC to advise ALL creditors about CO.

 

 

SHe was about to dismiss us and I said could I raise another point please.

And that was to have the N245 hearing to vary the forthwith judgement order before the CO hearing.

 

 

Judge noted down that it was to be heard at the same time as the adjourned hearing order.

Then she was about to dismiss us again and I said one more thing, could i please raise your attention to this point.

 

 

And I highlighted the letter where i asked for my CCA and Hillesden had written to say account is on hold and all action suspended until they could provide it.

 

 

The judge asked DLC's lawyer - have you provided the CCA?

The lawyer (going red with fury) said its not relevant at this point,

The judge responds says I know its not relevant but the claimant has the right to see it if requested.

 

 

Can you bring it to the adjourned hearing please.

And I say to the judge,

can that be noted down in the file please (and she does).

 

 

So the summary of the story is that its all on hold for another month at least If anyone has any info on the relevant sections of the CCA agreement about the debt not being enforcable could you post that please.

 

 

Anything to make it more difficult for Hillesden.

The CCA obviously has some relevance cos the lawyer got very twitchy when it was mentioned.

 

 

I gotta say - even if they get the CO in the end, I got a lot of satisfaction today from the red faced lawyer who obviously thought it was an open and shut case!!

[tomterm8]

This might be of interest to you, part of a prior skeleton argument I wrote:

 

9. It is a common misconception that the court, on issuing a judgment on a credit agreement effectively terminates all contractual requirements under that credit agreement, and consequently the terms implied by the regulatory framework set out in the consumer credit act 1974 and consumer credit act 2006.

 

10. The House of Lords considered this argument in Director General of Fair Trading –v – First National Bank Plc.. In this judgement, Lord Bingham stated

3. “

The bank's stipulation that interest shall be charged until payment after as well as before any judgment, such obligation to be independent of and not to merge with the judgment, is readily explicable. At any rate since

In re Sneyd; Ex p Fewings

(1883) 25 Ch D 338, not challenged but accepted without demur by the House of Lords in

Economic Life Assurance Society v Usborne

[1902] AC 147, the understanding of lawyers in England has been as accurately summarised by the Court of Appeal at p 682 of the judgment under appeal:

"It is trite law in

England

that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum."

 

11. Consequently, it is clear that, while a debt exists under a regulated debt, the contractual obligations of both parties continue to exist, and do not merge into the judgement.

 

12. A contractual obligation (under an implied term) of the applicant is to provide a true copy of any credit agreement under an open agreement upon payment. It is clear that this agreement remains open, since money remains outstanding on the judgement debt.

 

13. It is possible that the court may consider that the judgement itself constitutes a covenant to pay, independent of the original agreement.

 

14. To the best of my knowledge, this issue has only been brought before the court in Northern Bank Ltd v McKinstry & Anor [2001] NICh 6 (22 March 2001), a case in which this issue was considered, as follows:

 

“16

. “In this case the judgment related to a debt which had fallen due under a regulated agreement and clause 10 in my view is clear in providing that the security does not cover that sum. While the money is now due as a judgment the debt "arose" out of the regulated agreement. A judgment debt cannot be looked at in total isolation from the underlying legal basis giving rise to the judgment.

The wider ground for holding that the mortgage does not cover the judgment debt lies in the proposition also established in

London

Borough Council v El Isaac

namely that the doctrine of merger cannot be allowed to contradict a statute. “

15. It is admitted that thisjudgement was handed down in a Northern Ireland court; however, the relevant parts of the regulatory framework of the consumer credit act 1974 are identical in all regions of the United Kingdom.

 

 

CONCLUSION

 

16. Consequently, it is my interpretation that a judgement debt can not be enforceable to a greater extent than the original debt under the regulatory framework applicable (the consumer credit act 1974 and 2006). It is clear that since no enforceable regulated agreement exists has been provided under s77-79 of the consumer credit act 1974, the court is precluded from issuing any further enforcement orders in relation to the debt.

[Goldlady]

An excellent day's work grad - I am so pleased you have bought some more time. Would love to have been a fly on the wall:D. From what Tomterm has said above it sounds like there is a glimmer of hope, which is no doubt why the solicitor was doing beetroot impressions.

[stan5131]

Hi Grad. Sorry I have not been able to reply to your pm sooner but I moved and been offline for some time. I successfully defended three charging orders for members who pm'd me. I need to have a good read through your thread.

 

In all cases, the unlawful charges and CCA breach were contributory factors to winning. One member even received compensation for a wasted day in court. I also argued the point of an unsecured debt becoming a secured debt.

 

Stan

[olliepup]

This has been interesting reading.

 

I've basically contacted all my creditors myself and got interest frozen and set up payments including 2 accounts with DLC.

 

Only on of mine are being twats at the mo.

 

But what i wondered was do you think cccs has contributed to getting it to the point your at?

 

Do these debt management companys keep on the ball and keep the DCA'a informed?

 

I've not had any trouble as yet with DLC touch wood but i always keep them informed, never speak to them on the phone and at the end of 3 months i just fill in a form to say how much i'll pay for the next 3 months.

 

Saying that i'll end up with a letter tomorrow!

 

Good point though that a unsecured debt becoming a secured one!

 

Good luck in future dealings with them!

[Grad98]

I think Professional DCAs like CCCS do keep your creditors informed. You as the debtor also have a role to play by keeping your DCA informed if there is a change in circumstances. You also have to be aware of your how all these things work. In my case I just listened and acted on the advice of CCA who told me 'admit the debt'. What they told me was not incorrect but had I seeked advice from this site before i did that, I would 'dsiputed' the debt and not have been in this situation now. Moral of the story is get a second or third opinion!

 

A quick update on my case. Its been adjourned to the 21st January. The letter from the court states the things that were discussed in the original hearing .i.e. that I was to provide Hillesden with a full list of creditors, that the variation order hearing should be heard at the same time as the final charging order hearing, BUT the letter does NOT mention that the CCA should be produced which was one of the things the judge verbally told the Hillesden lawyer to produce for the adjourned hearing. Stan - I look forward to your advice and suggestions on what I could do now.

[stan5131]

You need to write to the courts pointing out that the judge specifically requested this. Make your letter light and polite (you are just wondering if this is an oversight or maybe it is irrelevant as the judge will have made a note of this). Also write to Hillesden lawyer pointing out that this is required at the next hearing and that you would like a copy for your perusal prior to the hearing.

[stan5131]

Just a quick question. Have you sent SAR to Citi?

 

Stan

[olliepup]

Had to laugh after my post saying i'll end up with a letter tomorrow off DLC and guess what?

 

There was one saying i owe 394 quid and they are taking me to court for it if i don't ring them!

 

Already sent them a Direct debit to take payments for this but must of crossed in the post!

 

Same post i got one from DLC saying they accept my offer for a larger debt!

[tagal]

Went for the CO hearing today and it was adjourned. I dont know if thats a good or bad thing! Basically one of my points I raised in the objection letter was not all the creditors had been informed so DLC would be unduly prejudiced. The lawyer from DLC was spluttering in anger.

Hi just thought I would let you know that the same happened to us. DLC went for a C.O. for an egg debt. We went to our local court on the day we were informed and Aplins Solictor turned up, we were told the date had been moved by the court clerk and that Aplins should of informed us. The solictor said that he knew nothing about a change of date and rang his office who then strangely found correspondence to show change of date, but had not informed us or solicitor - solicitor not happy! so wasted day off work, although did claim and get compensation from the court Anyway attended for the C.O. hearing and the judge noticed DLC had not notified any of our creditors and said "he was tempted to throw the case out", but would give us six weeks as we were re-mortaging to clear the debt. So went back to court (same solicitor) different judge unfortunately. We explained our mortage was near to completion, but she was not interested and would not let us speak very much at all. She granted the C.O. I wish we had known more and known how to argue our case, but this was at the beginning of our DMP and we were so frightened and had not found this site. To this day am not sure whether other creditors were informed as were only in the court 5 minutes and the judge had already made up her mind.

 

Anyway, just thought you may like to hear our story. Thankfully, C.O is now paid off in full (week after it was granted by the court) when the mortage was completed. X

[Tawnyowl]

Grad- well done in court. Would pay money to see solicitor turning red.Also spluttering -how wonderful.My debt with DLC about 2200.

I was expecting co to be made but judge accepted my variation application which has reduced amount to be paid down to token payment 1 pound per month.

The reason i am writing on your thread is to my surprise my Amex account has led me down a similar path to yours.A co hearing has been arranged for late December.

I am going to ask you if i can take some of your points in your letter to use in my own hearing rather than you possibly reading them in my thread and think i was a cheeky xxx. I hope it wasnt to nerveracking in court .Iam dreading it .I will probably end up throwing up over their lawyer.

One last point was your case heard in your local court.Did you get it transferred -only where my case is going to be it is the other end of the country.

I think you know what i mean when i say good old Stan the man.

[Goldlady]

Iam dreading it .I will probably end up throwing up over their lawyer.

 

Hopefully there will not be too many stairs - my advice is to use the lifts as I got serious wobbly legs syndrome:o And it wasn't even my case.

[Tawnyowl]

Am going to gym to get some cardio work in if this is what it might do to me.Dont want to get wobbly leg syndrome.Perhaps a stiff drink might help-just the one- or two-or zzzz- must fly thanks for advice.KEEP YOUR CHIN UP Grad- you are doing very well.And thanks Goldlady it lightened things up a bit.

[Grad98]

hello everyone and compliments of the season! I havent been on here in a while as I thought I would take some time out to enjoy the christmas spirit and Hillesden et al are the equivalent of the grinch.

Thanks for all your tips and heads up.

 

Stan I havent done an SAR nor written to the courts re the CCA but will do that this weekend - thanks for the advice.

I had actually written to Hillesden saying that the courts have instructed they provide the CCA but of course they just ignored my letter. I guess because they received a copy of the letter from the courts for the adjourned hearing and it makes no mention of producing the CCA. I need to get that letter off to the court as soon as possible!

 

Tawnyowl - keep your head up and good luck with amex. Do let me know how its going - whens your CO hearing date?

 

Merry christmas everyone!!!!!!

[Tawnyowl]

Hi Grad - compliments of the season to you to.Like that about the Grinch.

Have also been taking a bit of time away from the screen.

Hearing on 27TH December.

I am hoping for a wonderful result-but will see-better to try and fail than not to try at all.I also have had dealings with DLC.

I dont think they will forget us for a while.

Best wishes -take care-will post again soon.

[Grad98]

Just wanted to give an update on this case. Having written to Hillesden to say the courts have instructed them to produce the CCA given I requested it before legal action was taken, they wrote to me suggesting they 'suspend' the case until the CCA is found/

 

So the court date lapsed on this basis. I subesequently received a letter from the courts saying that essentially the case has been dismissed. No order to repay and interim charging order is dismissed.

 

MANY MANY thanks to every single one of you that posted, gave me advise and supported... I couldnt have done it without you. I am in the process of dealing with another court summons from Natwest but with CAG in my corner I feel so much more confident!

[Tawnyowl]

Fantastic result.Well done.Good luck with NatWest.Bye for now Tawnyowl