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Order to attend court for questioning!!!


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I really need help on this one!

 

Back in 2000 I bought a MG - things were going well for me but when I lost my job I couldn't keep up repayements.

I imformed MG financial services of my circumstances but they were not intersted in helping me at any level.

They then repo'd the car.

 

The outstanding debts I had at the time I went through Bains & ernst (forgive me for that one!) to payback my debts through an IVA.

After a few years of paying I found that I could manage my debt better dealing direct as B&E were taking a substantial management charge.

 

I wrote to all the companies I owed money.

Majority wrote back saying they were happy and they wrote off the remaining (a few hundred here and there).

MG however did not reply so I sent another letter.

Again no response (at this point they were getting taken over by BMW).

 

Now in 2008 I receive a order to attend court for questioning about this debt.

This is totally out of the blue!

 

It states that an order was made against be in Feb 2006 and I have not paid towards this debt.

 

I rang the solicitors dealing with the action (BPE).

The lady I spoke to was very harsh to say the least when I was attempting to discuss the matter, she was not interested!

 

The claim in feb 06 was sent to my very old address where I lived with my parents (they had moved away prior to this date!) How was I supposed to know.

The strange thing is that when I was with B&E they had my new address at that time.

How could I defend myself when I didn't get the documents!?!

 

I have asked the a true copy of the agreement (dating back to 2000) she said I should have a copy but she will request one. She then hung up! (nice)

 

What can I do?

Can I get copies of all the documentation BPE have?

Am I entitled to this information?

I need to look at defending myself.

 

Any comments would be gratefully recieved!

 

(we all make mistakes in life but we learn)

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ok, it sounds like if you had moved before the order was made you would have a good case to defend the order in the first place, I would send a SUBJECT ACCESS REQUEST to the finance company - send it by recorded delivery and send it with a £10 postal order. I am wondering if you should also at this stage (advice please) a CPR request to the solicitor, also explain to them that you had moved before the original court order came through....If you have been paying since then you should be ok BUT you need to defend this ALSO do NOT rely on them asking for an agreement, as she may not even bother asking, then it is your word against theirs, you need to put this ALSO in writing to them by way of a Consumer Credit Agreement request again, send it with a £1 postal order, do not hand sign anything to them, and send it via recorded delivery.....you should cover every base....it is also likely that there may be some excess charges added to the account, which you can also contest....(this you should be able to work out as they will come back with statements from your S.A.R - (Subject Access Request) request)

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Have you any proof they were aware of the address before the court claim? (e.g. letters they sent you).

i will be off site for the next month or so. if you have any problems, feel free to report the post so a moderator can help you.

 

I am not a qualified or practicing lawyer.

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ok....this is the CPR request (but i'm not sure if this is relevant at this stage - hopefully someone will advise)...this is reproduced courtesy of Curlyben

 

Dear Sir/Madam,

 

I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. The information must be furnished by the 27th October 2007, which gives you ten days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with Beneficial Bank.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

3. Any other documents you seek to rely on in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

 

I will require this information within the next ten days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully,

 

This is the CCA request - use letter 'N' here...

 

http://www.consumeractiongroup.co.uk/forum/general-debt/20758-creditors-dcas-letter-templates.html

 

And the SAR can be found here - you will obviously need to edit these...

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/516-1-data-protection-act.html

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  • 4 weeks later...

All. Many thanks for your advice. Here's the update for you...

 

I sent the S.A.R request giving them 10 days to respond. On the 10th day I got a letter saying they were trying to get the documents from the previous solicitor.

1 week later another letter saying the documents were on there way to there office.

2 days before the court date - following me reporting them to the courts for not supplying information, another letter lands telling me the the court date will be adjourned until i have go a copy of the court documents.

 

I have now sent them another letter stating that I require all the information from the SAR and not just a copy of the court documents.

 

I have now paid my £60 for the judgement to be set aside.

 

My question:

 

If they cannot produce documents from there previous solicitor or a true copy of the agreeement can I claim they repo'd the car illegally and get in or the value at the date of the repo back? Alternatively, can I claim anything?

 

OR

 

Should I walk away hanking my lucky stars they screwed up!

 

 

Surely this solicitor would have a true copy of the agreement before spending time and money persuing me through the courts? These are well educated people after all.

 

Answers on a postcard.

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Well put it this way NE, a debt CANNOT be enforced without a credit agreement (let alone it having to have the correct prescribed terms)....you know the law/your rights...a lot of these companies expect people to curl up in a ball (which invariably a significant amount of people do).....I would claim for as much as possible, costs, the car, defaults on your credit file etc etc and I would ask the judge to dismiss the whole claim from them as they obviously haven't got the documents and are trying to avoid an abuse of process claim and pay your costs which will be about £1,000 no doubt !!!....I presume you are aware of the Wilson Case too ?....you may find this interesting reading as it was a similar situation to yours....

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

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Another update......

BPE solicitors have now sent me some documentation. They have sent me the particulars of claim and the actual judgement. The particulars of claim states the amounts they say I owe plus interest etc. I sent the great CPR letter that 42man. What is annoying me is they haven't sent me a true copy of the agreement etc. What can I do now? I get the feeling this information from BPE is going to be my lot.

 

Help please, any adviceon my next step would be gratefully received.

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Tell the court you have received incomplete documentation as per your letter and that the claim should be struck out due to abuse of process and a Notice of Discontinuance issued to you from BPE Solicitors..... that should stop them in their tracks AND stop them claiming again.

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As Silly has said you have received incomplete documentation, and how can you provide a defence without the information, also there is no Consumer Credit Agreement which is a complete defence in itself.....let us know what sort of help you need NE, not sure how much other reading you have done on this site so far !!!

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  • 1 month later...

UPDATE!!!!!!

All,

I sent the request as per 42man along with a £1 postal order. They have replied sending back my postal order stating the following:

 

Firstly, Section 77,78 and 79 of the Consumer Credit Act 1974 refers to the creditors, i.e BMW's duty to provide information to their customer during the period of the contract. This period expired upon termination of your agreement. Section 78 however, deals specifically with running account credit and section 77 relates to fixed sum credit.

They have attached a customer information questionaire for me to complete and return with my realistic payment proposals within 7 days failing which they will advise the client to consider further enforcement action against me.

 

My question is: "What can I do now?"

 

As ever your advice is greatly appreciated.

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It doesn't matter who the agreement was with, without it they can NOT enforce the debt (let alone it having to contain the prescribed terms and be properly executed !!!) Don't you get the feeling Neverending that they don't/can't find the agreement and are now clutching at straws ??? you are under no obligation to fill out the form !!!....send them this back !!!

 

Edit as required (reproduced courtesy of Curlyben)

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

And

 

(b) If the default continues for one month he commits an offence.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

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42man,

 

Thanks for your swift response, it is very appreciated. With regards to the questioning, this was cancelled by BMW's solicitors 2 days prior to the date to attend.

 

I will be returning their 'Customer information questionaire' along with my £1 postal order which they returned.

 

The only document they have sent me is the original court claim which was made in 2006 (4 years after the car was taken back!) There is no copy of the agreement attached to this either so I would agree that they have not got this document. Nor have I recieved a copy of the credits/debits made on the account. It smacks of bullying tactics to me. But I do feel at present that I am fighting outside of my weight! I will however continue to fight the fight.

 

regards

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Did you check with the court that this was the case - it's been known for the solicitors to follow one line and the clients another. You now need to lodge a complaint with the company over this, and the solicitors ombudsman service, the Law Society, as clearly the solicitors have been 'vexatious litigants' in this matter.

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If you need any specific legislation or reassurance about the agreements Neverending you can see the letter I received back from the Parliamentary Under Secretary Of State...!!! have a read

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/133653-consumer-credit-agreements-letter.html?highlight=gareth

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  • 3 months later...

Its been a long time since the origonal post so here where we are at now..

 

I did not recieve any further correspondance from the company until yet again an order to attend for questioning was posted to me as they claim they could not hand deliver. Complete bull! Anyway, I paid my £75 to have the judgement set aside stating the reasons and attaching the letters from myself and there responses etc. They still did not send me a copy of the signed credit agreement until today when I recieved a copy of their witness statement and low and behold they have attached a copy of the credit agreement...

 

However, The agreement is signed by the dealer, clear as day. Where my signature should be it is blank (unsigned not covered etc as this is there defence to the court)

 

Suggestions?

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An agreement which you didn't sign proves absolutely nothing. If you didn't sign, how can they prove it was you that took out the finance, or prove that you even saw a copy of the agreement?

 

I think this is game over for them.

RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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  • 1 year later...

Hi all,

Have been reading your posts with great interest.

I have just been served with papers from my ex husband to attend court for questioning.

I have never recieved the original judgement and so do not know what the debt is for although I am assuming it is to do with a business he had many years ago, and I believe the debt he is chasing is where I may of signed a guarantee for a car that he had. I unfortunately wasnt in a position not to say no, I know that being naive and afraid is not the answer to putting myself in this position. The car was bought in his company name and we would have both signed a guarantee for it, I am rather vague about it all as this happened over 11 years ago, I have been separated and divorced 7 yrs.

Can I have the original judgment set aside? because I have never recieved the original judgement.

and what are my responsibilities as a guarantor, I do not work I am a student with no assets.

and as I do not have the original agreement I do not know what I signed for and unsure what my position is.

sorry to be so vague...

oops another question, he has attached a list of question to the order for questioning, but some have no relevance to what I am assuming is his claim for half of the debt, as I believe the finance company have put a charge on his house for the debt that is why he is now chasing me.

thanks in advance for any help.

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Thank you for your prompt reply.

I have never made personal payments on the debt/car as it was my husbands business. Payments were made through the company which was liquidated in 2001, payments I believe stopped around that time.

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