Court Hearing 25th Feb...Help Please **WON** CASE STRUCK OUT

[illonavamp]

Hi,

 

My credit card company are taking me to court for the balance of the card.

 

I was issued a card with them (and signed a credit agreement) in 2000, this card was reported stolen and cancelled about a year later.

 

Last year, the company wrote to me saying that they couldn't find any credit agreement for the card in my possession. I didn't sign anything.

 

Anyway, to cut a long story short, my court hearing is in February and they are saying that the original credit agreement I signed (they sent a copy - it has the original card number on it, different to the one they are claiming against) applies to any cards I have with them.

 

I REALLY need to know if this is true please? I repeat, ALL they have is a credit agreement for a card that was stolen and subsequently cancelled. I didn't sign anything for the card I got after that.

 

Do I have any leg to stand on in this matter? I keep writing to the court saying they have NOT produced any credit agreement for the card they are claiming against but so far the court hasn't put a stop to any hearing or action by them.

 

Secondly, they were given until the 8th December to produce the credit agreement (by the COURT), they didn't respond by this date - they wrote to me on the 18th DEcember saying the old agreement applies and the court retrospectively extended the 8th DEcember to the 18th December. I now have until Wednesday to add any comments before this thing happens.

 

Any suggestions, PLEASE I am absolutely desperate. If I don't have any leg to stand on I will be listing all unlawful charges on the account since inception to maybe lessen the blow - but I need to know what to do now.

 

Thanks

 

Sam

[mrmarmite]

lol, if it different card/account number nowt they can do, as to your secondly point, court ordered to show credit agreement and they FAILED????????? court would of throw this out, LISTEN to COURT only NOT what card company tell you, there BIG difference

[mrmarmite]

IF card company FAILS to provide an agreement they willfoot the costs, THEY have taken action against you for some thing they cannot LEGALLT proove

[mrmarmite]

p.s DON'T PANIC

 

if everything you put in 1st post is true card dont have leg to stand on, BUT as i said LISTEN to COURT ONLY IGNORE what card company says, they just trying it on to scare it it of you

[illonavamp]

Thats just it though, the court hasn't said 'right you buggers, you haven't produced a credit agreement, therefore you are stuffed' - they are proceeding with the hearing - or are they likely to say it then?

 

Is anyone SURE about the old card number thing? I'd really like to sleep tonight knowing theres some hope.

 

Thanks for the replies! I'm really down about this, I want it all to go away.

[mrmarmite]

no court wont say nowt till 1st hearing, idea is you go into an office, when you get asked your responce MUST be "please provide an executed credit agreement"

 

look in CAG template library there letter you can send fredpay/carter requesting info that THEY will rely on in court, if cant find it either i or another CAGer will do 2moz, i gotta go to bed as up early but be back on this case 2morrow

[illonavamp]

p.p.s Instead of throwing the case out on 8th December which was a deadline in an ORDER 22nd October, the court has said:

 

".....The time for claimant to comply with paragraph 2 of the Order 22nd October 2007 is extended until 4pm on 18th December 2007 retrospectively"

 

(18th December was when cc co DID respond, but still with their original argument, no documents, deadline WAS 8th December)

 

Can you make sense of this? is it fair? why would they have done this? (I was all happy after 8th December as I thought I was home-free to a certain extent)

[Tau]

Can you scan and post the agreement they have sent you.

It might also be an idea to write to the solicitors asking for all details that they will be using in court under the Civil procedure rule 18. If you have already done this then ignore it.

[Robdblynd]

http://www.consumeractiongroup.co.uk/forum/general-debt/108467-basic-introduction-consumer-credit.html

 

Have a look in there, post 3 is the one you need first.

adapt the letter to suit your case, send it 'signed for' to whoever issued the claim, giving them 14 days to comply.

 

If they don't comply, bring it to the attention of the court that they've ignored your lawful request for information & documentation.

[illonavamp]

I already know that the information they will be relying on in court is the CCA they have already sent me for the old card - on the basis that they say that it applies to any and every card issued to me (even though my old cancelled card no. is written along the top)

 

And I need to know whether this is true. Because if it is, I need to prepare accordingly.

[illonavamp]

mrmarmite, appreciate anything you might have to add, I have to get my comments in by tomorrow.

 

Thanks

 

 

Sam

[illonavamp]

ickle bump

[mrmarmite]

i cant see how it can be. they relying on a closed payed up account?

 

if you opened a new account then new agreement needed

so i say no. have you got any terms and conditions? if so read it and see if ANY mention of this in it. if not that confirms they trying it on you

[illonavamp]

OK thanks.

 

I've been asked to respond to comments from them to court by CoP tomorrow so I will jsut say:

 

- They failed to respond to a court order in time

- They failed to produce a valid executed credit agreement

- In the absence of any agreement the default they have issued is unlawful.

- They are required to have a new CCA for any replacement card they issue (and never have, I have certainly NEVER had one to sign)

 

 

(On that last point, I read that somewhere here but can't remember where I saw it - can anyone point me to it! ty)

 

 

And leave it at that. I am sure they are trying to bully me into agreeing OoC settlement but I'm determined on this one. I am remortgaging end of March so can't afford anything 'worse' to happen to my credit reference between now and then - I just wish I could delay the hearing but oh well one can't have everything.

 

Wish me luck, hearing 25th Feb ~clatteringnerves~

[illonavamp]

i cant see how it can be. they relying on a closed payed up account?

 

if you opened a new account then new agreement needed

so i say no. have you got any terms and conditions? if so read it and see if ANY mention of this in it. if not that confirms they trying it on you

 

Well the card was stolen and fraudulently used. I was subsequently issued with a new card, different number. Just reading up on 'account numbers' now.

 

Guessing that changes things?

[mrmarmite]

ok see where they getting, original agreement applies as in effect it the same account.

 

just to confirm the money owed is correct BEFORE card was stolen NOT after?

 

you told them ASAP that the card was stolen?

 

as to the agreement you signed, was it an agreement or an application form?

 

if back in 2000 it more likly to be application form,

do you have a copy of it? or done CCA request for it?

 

if so does it contain the prescribed terms?

 

soz for 20 questions can get it sorted quicker that 1 at a time

[mrmarmite]

and soz for not replying earlier on your 3 posts i work 6-5, i'm bit suprised there not a moderator (with best experience) not popped in (lol they prob will now i said that)

[illonavamp]

ok see where they getting, original agreement applies as in effect it the same account.

>>>> Funny you should say that, but I've looked AGAIN at what they've sent me and it is in fact the original application form I completed. On the bottom it says "account number xxxx xxxx xxxx xxxx" (same as the number on card).

 

just to confirm the money owed is correct BEFORE card was stolen NOT after?

>>>>Yes.

 

you told them ASAP that the card was stolen?

>>>> They actually told me, unusual purchases. (2500 watches in belgium...)

 

as to the agreement you signed, was it an agreement or an application form?

>>>> An application form is what they have sent me when I asked for CCA. And I quote from their letter "now that you are in receipt of credit agreement could you please contact me further with a view to settlement of the debt?"

 

if back in 2000 it more likly to be application form,

do you have a copy of it? or done CCA request for it?

 

>>>> Yes, 19th Feb 2007 I requested, and I asked for three things:

 

"true copy of the signed nationwide credit card agreement"

"true copy of the consumer credit act agreement"

"true copy of the signed credit card protection application"

 

on the 18th June, I got a response:

"Please find enclosed a copy of the credit card agreement. If there are any further documents that you require, please contact me further so that this can be arranged. Now that you are in receipt of credit agreement could you please contact me further with a view to settlement of the debt? If you require further information please do not hesitate to contact me."

 

if so does it contain the prescribed terms?

 

=======================================================

>>>>> Not that I can see - it's a basic application form for a credit card containing:

 

- principal cardholder details (my name address contact details etc)

- employer details

- description of payment protection insurance with tick box (yes, want, no don't want)

- Card ptoection Plan prices and tick boxes - I ticked 25.00 for 3 years.

- additional cardholder details (if required)

 

Then it has two lines "Credit Agreement Regulated by the Consumer Credit Act 1974. The parties are Nationwide Credit card services adress blah and the person whose name appears in the Primcipal Cardholder Details section of the application form. The Nationwide Credit Card Conditions form part of this agreement"

 

Then signature declaration.

 

My signature, date 25/7/2000

 

Then box for society use only:

 

Account number: xxxx xxxx xxxx xxxx

DAte Account opened:

Prefix:

Signed on behalf of nationwide: 4/8/2000

 

=======================================================

 

 

 

soz for 20 questions can get it sorted quicker that 1 at a time

 

>>>>>>>>>

[mrmarmite]

you laughing then i'm pleased to say, it's unenforcable,

 

in your main defence, state and show proof of CCA request last year cca request requires that they they have 12 WORKING days to provide it, after a further calendar month the debt is unenforcable in a court of law enter respective dates and put quotes in from s.77 & s.78 of the CCA.

 

 

judge cannot enforce this debt without it (actually it states in cca that a judge is not allowed, i'll fish number of that section out later on.

 

"Sweet"

[illonavamp]

OOOOOOOOOOOOOOOH thankyou so much, if you could point me to quotes and possible wordings that would be great.

 

I filed a defence wayyyyyyyy back when requested which said:

 

============================================

 

xxxxxxxxxxx (Claimant) and

 

xxxxxxxxxxxxxxxx (Defendant)

 

 

CLAIM REF: xxxxxx

 

 

 

 

1)The Defendant objects that the Claimant's statement of case does not comply with the Civil Procedure Rules Part 16 in that a copy of the purported written agreement between itself and the Defendant, which it cites in paragraph 2) and 3) of the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form. The Defendant is therefore unable to plead specifically to the allegations contained within the Particulars of claim at this time.

2)The Defendant has repeatedly requested a copy of the written agreement cited by the Claimant in its Particulars of claim (the first request being 19th February 2007), along with other such documentation in respect of the Defendant's alleged indebtedness to the Claimant, under a Data Protection Act 1998 Section 7 "Right of Subject Access" request. The Claimant has failed to comply. The Claimant continues repeatedly to produce (9 months after asking) a CCA for a completely different account which was cancelled and closed in late 2002. This does not relate in any way to the account against which the Claimant has issued its proceedings.

3)Further to paragraph 2) above, a demand has been submitted by the Defendant under section 77(1) of the Consumer Credit Act 1974, requiring the Claimant to provide true copies of the alleged original agreement (the first request being 19th February 2007), as well as true copies of all documents referred to therein. The Defendant avers that whilst a creditor fails to comply with such demand any agreement would be unenforceable in its entirety by virtue of section 77(4) of the Consumer Credit Act 1974.

4)The Defendant objects that this action has been brought prior to the Claimant providing essential information and documentation, as outlined in paragraph's 2) and 3) above, despite repeated requests that it do so. The Defendant avers that the Claimant has acted without adherence to or regard for the Pre Action Protocols of the Civil Procedure Rules.

Accordingly, the Defendant requests a stay in proceedings until such time as the Defendant complies with the requests outlined in paragraph's 2) or 3) above and is therefore able to provide the necessary documentation in order that it can plead its case in compliance with CPR 16. The Defendant reserves the right to then plead further to the Allegations contained within the Particulars of claim.

 

==================================================

 

 

1. So I'll just refer to that in the hearing?

2. is there anything I should add?

3. Should I remove the 'requests a stay until such time...' and request the case be struck out entirely?

4. Can I get the default they've issued removed? (off to research that now though judge did say at pre-hearing that I would need a solicitor for that?)

5. The only thing they could say regarding my cca request was that it wasn't sent recorded however they acknowledged receipt in writing so I've answered my own question there. Anyway I've asked several times and they've had a LOT of '12 working days'...

6. Is there anything I need to send CC company prior to hearing? I have been corresponding with court - should claimant have copies of my defence? Pretty sure I sent it but should I cover my back here?

 

 

Thanks for your help and sorry for all the questions.

Phew big, HUGE weight off my mind so far.

?????

[mrmarmite]

lmao, going by you POC you dont need my help, to drunk now so if i not posted by 7 2morrow just post "bump" and you will get my full attention.

 

questions:

1. yup

2. theres always things to add

3, can do but ask me that question 2morrow when i'm sober

4.without a cca YES

5. as said own question answered

6. yes template letter requesting whgat they plan on using in court under civil proceedure rules, you got 28 days to file defence. court papers will say file copy to court and claimant at same time

[mrmarmite]

p.s, like i did with you, ask few q's at same time, can cover a lot more in shorter time that way

[illonavamp]

Hey marmite if this gets chucked out I'll be getting EVERYONE ON HERE DRUNK.

 

Will bump ya tomorrow have a pleasant evening

[illonavamp]

Bump

 

No.3 though no rush

 

And what should I include in my 'court bundle' if there a link I can read about court bundles? I guess it's just a copy of everything I'm going to use.

 

- what makes an enforcable agreement - just so I'm clear?

[illonavamp]

1. I'm putting my court bundle together this weekend - so i send to court AND claimant?

2. Registered / Special / Recorded Post?

3. Was thinking: no cca has been produced and a default has been put on my record: my mortgage scheme expires end march and BECAUSE of that default the only mortgage I can change to is one thats more expensive than standard high street schemes - could claimant be liable for the difference in the cost of my mortgage because of the default? - was just curious lol

 

 

Anyway I printed off Court procedures and consumer credit act and am just working through them to back up my defence.

 

Is there anything else I should do this weekend on my case?

 

Sam