MCE Portfolio Advice Please

[42man]

Absolutely right you can dispute the debt at any stage....I would write to them requesting a copy of your Consumer Credit Agreement (without it a debt cannot be enforced)....also it seems they have just added a MASSIVE amount of excessive charges which you can claim back + 8% compounded interest.....it MAY even be the case they owe you more than you owe them !!!

[42man]

Use letter 'N' from here, send it with a £1 postal order, do NOT hand sign it and send it by recorded delivery...

 

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

[42man]

It might also be worth sending them this too if they are threatening court action.....again send by recorded delivery...

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have been told by your company that you intend to take legal action against me. In order to file a defence and counter claim I require some information. Given that this matter will be the subject of legal proceedings, you will be obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of any court papers. 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. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. 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 *********.(AMEND TO THE COMPANY NAME)

c. 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.

d.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).

e. 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.

f. 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.

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

h. 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.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court in the event of your intended action.

 

 

I will require this information within the next fourteen days if you proceed with your threat. 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 future defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

[42man]

I would also send the CCA letter request as well by recorded....(send them separately too - both recorded)....if you feel they owe you more than you owe them (in excessive charges) then you may want to try and claim those) bear in mind they HAVE to produce your Consumer Credit Agreement within 14 working days or they are in default of your request, if after a further 30 calendar days they still haven't produced it then if I was you I would stop paying them !!

[42man]

Hi FB.....it might be worth looking at this thread....it is different in that their case was with a DCA, but it still revolves around the CCA...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115280-useful-information.html

[42man]

I know there are a couple of threads on the forums where people are fighting against defaults and CCA's but I can't lay my finger on them at the moment...

[42man]

A request for a Consumer Credit Agreement costs £1

 

A Subject Access Request costs £10 for copies of defaults, statements etc.....if you sent the CCA request....then the debt was NOT enforceable....take a read here if you need convincing...

 

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

 

You said in post 1, that you received the court papers, did you acknowledge the claim within 14 days of the date of the papers ?....

[42man]

If it was me in your position, I would immediately get the paperwork in to counter this claim, the dispute was highlighted as soon as you sent the request for a copy of your Consumer Credit Agreement....while they have not provided it a DEBT IS NOT enforceable by law.....this is the relevant section from the Consumer Credit Act...basically as they have fallen outside the timescales, they have committed an offence under the Consumer Credit Act 1974 !!! and they know it !!! they were hoping you wouldn't defend and have gained the CCJ by default...

 

Which you may like to quote in your claim to get the CCJ struck out...

 

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

 

and section 78 for running credit

 

 

78.

Duty to give information to debtor under running-account credit agreement.

— (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the state of the account, and

 

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(6) If the creditor under an agreement 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.

 

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement

[42man]

Did you not defend the CCJ ??

[42man]

So they didn't even reply to your SAR request either ?

[42man]

OK....well you must defend this and go and try and get the CCJ set aside if you can....

[42man]

What you need to do now is put in an immdiate application to set aside the CCJ.....

 

This could be a defence for the CCJ set aside and possibly the charging order......

 

 

 

The build up to this action

 

5. In the build up to this action, I had raised a formal dispute with XXXXXXX. on the xx/xx/2007 I wrote to XXXXXX requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the xx/xx/2007. (A copy of the correspondence is attached to this defence marked CP)

 

Even to this date no agreement has been produced and they are in default of my request.

 

I also made a Subject Access Request under the Data Protection Act on XXXX. This was received by them on the (date)The company are obliged to send me all my paperwork and information within 40 days. They are in default of my request.

 

On the XXXX I have discovered that a CCJ was issued, this was at a difficult time in my personal life due to.......

 

I am in the process of getting this set aside.....due to non production of the agreement, copies of default notices, copies of notices of assignment.

 

The Need for a Credit Agreement

 

THE IMPORTANCE OF THE CREDIT AGREEMENT

Under section 78 (1) of the Consumer Credit Act A formal written request for any true copies of signed consumer credit agreements was sent to First Credit Ltd. via guaranteed delivery on the (insert the date on the recorded delivery slip here Dave) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies one for the court and one for the opposing solicitor ) – to date they have not sent any copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

I believe there are no properly executed signed Consumer Credit Agreements (as the account does not exist), If they had been able to supply these agreements then they would have done already to avoid committing an offence under section 78 (1) of the Consumer Credit Act

SECTION 78 (1) CONSUMER CREDIT ACT 1974

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

The Consumer Credit Act in section 78(6) States that

(6) If the creditor under an agreement 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.

It must also be noted that the agreement must contain the prescribed terms.

Consumer Credit Act

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

REFERENCE TO CASE LAW

• As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:
  ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’
  

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

The Need for a Default notice

 

30. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

31. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

32. Notwithstanding point 31, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

33. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

ALSO

 

With regard to excessive charges that may have been added to the account.

 

 

. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

Edited September 10, 2008 by 42man