Help with DCA and Court Summons

[Aprd]

Hi, wondering if someone could offer some help with this.

I opened an Argos Card Account in 2001, I purchased a camera for eighty one pounds and subsequently fell behind with the payments after a payment was made via the post office and they stated they hadn’t received it. They then added a late payment fee with sent the account over its agreed limit when then in turn triggered an over balance charge.

I agreed a repayment schedule with Argos, they would only accept thirty pounds per month which was above my affordable limit.

Subsequently I fell behind with the repayments, although I continued to pay twenty pounds per month. After 2 years I totalled the amounts up that we had paid them as the debt didn’t seem to be reducing, however after contacting Argos Card Services I found that they were adding 25 pounds per month for late payment and over balance.

On 19 Feb, 2008 we received a claim form from Northampton County Court.

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After reading these forums I sent this document via recorded delivery on the 25th Feb, 2008:

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We then received a letter from this company for the same debt on 24th Feb, 2008 and subsequently received a further letter on 11th March from yet another company for the same debt.

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http://img296.imageshack.us/my.php?image=courtdocument3sa5.jpg

I then received the reply in response to my request for information, which please note was received after the 14 day deadline, although they have dated their letter to full within this period yet the postage on the envelope clearly shows posted on the 19th march, 2008.

http://img504.imageshack.us/my.php?image=courtdocument4zp7.jpg

Also attached was the credit agreement (only 1 page), the name and address was clearly marked however been removed for privacy.

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Please note the difference in dates between the date on the letter and the post mark.

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Not sure where to go from here, any advice would be gratefully accepted.

[Docman]

Oh I do like it when DCAs and their solicitors screw up big time.

 

Right, first things first. Write to Bryan Carter to tell them this is already before the court and that if they take any further action, you will make a formal complaint to the Legal Complaints Service.

 

Next write a similar letter to Fredrickson with a possible complaint to their local Trading Standards, if you want. That should take care of this aspect.

 

Now, turning to the more urgent matter of the court claim. I presume that you have acknowledged the claim to the court, as you have sent the 'Request for Information' letter. If you haven't, I suggest you acknowledge receipt online today.

 

The response from MLS is complete twoddle. Legal privilege my rear end. They know they haven't got a chance with the 'agreement' which doesn't appear to have the prescribed terms, hence their request that you acknowledge liability. I trust you won't be doing any such thing.

 

Since MLS have responded, you should file a defence online and you can make reference to their letter (and the late posting). Can you draft out a possible defence from the information from other threads. If you can't, I know others will also assist but we will all need to have further details and sometimes its easier if you have a go at a draft yourself and then everyone can chip in with suggestions.

[lihi]

Your Argos card agreement is exactly the same as mine = unenforceable, it's been looked over by PT (CAG GOD) Lewisham trading standards and Kent Trading Standards and they all said the same thing unenforceable. there's no APR rate and the advice box re trading standards.I think it's outrageous they wouldn't accept your £30 payment per month, they accepted my £20pcm offer until they sent the alleged CCA.

[pt2537]

Hi there,

 

as a matter of extreme urgency you need to file a defence,

 

i hope the deadline has not passed because they will have the right to file for default judgment

 

 

you really should have come here sooner, but thats life i guess. the document laughingly called the Credit Agreement is woefully inadequate

 

it is unenforceable in a court,BUT if you dont file a defence as such then the court CAN enforce this

 

so can you clarify as time is of the essence, did you file any defence with the court

 

when is the defence due? i can help you with the defence but i will need to know what time frames we have to work to

 

regards

paul

[Aprd]

Hi, thanks for the replies, we have acknowledge the claim but have not yet heard off the court a date for the hearing or when the defence needs to be submitted.

 

As yet, the only documents off the court are the ones posted, I'll call Northampton Courts Tuesday and try to find out any progress.

[pt2537]

Hi im afraid it doesnt work that way

 

the court will not tell you what to do or when to submit a defence,

 

you have 14 days from date of service to acknowledge the claim stating either that you admit the claim or you are defending all or part of it

 

then if you defend you are given a further 14 days to file a defence

 

if you dont

 

you lose, and they can ask for judgment thats as basic as i can outline it

[Aprd]

ok by the looks of it, i`v left it too late if i understand you right.

[pt2537]

well by our calcs you have til tomorrrow to submit your defence, but you will only be able to do so on line

 

the documents they supplied is improperly executed and fails to include the Prescribed terms as laid out in Schedule 6 Coloum 2 of the Consumer Credit Agreement Regulations 1983 /1553

 

i will see if i can come up with something for you to use but i hate Mcol with a vengence as it only allows you 8000 characters and my defences are normally too big for that

[Aprd]

Thanks very much, i`m really greatful for your help.

[DocH]

When I had to submit my defence, the submission date fell on a Sunday and I found out that I had until 4 o'clock on the next working day to get the defence in. That information was on the MCOL site somewhere - trouble is I can't find it at the moment.

 

If that is true, and I'm 99% sure it is, then Aprd could fax the defence in, or if no fax available get it couriered there. Although expensive the Royal Mail do a courier service. Using the courier may save some money in the long run if the defence gets the case thrown out.

[pt2537]

1. The claimant's particulars of claim as very vague and are not sufficiently particularised in accordance with CPR part 16 and practice direction 16 in particular the claimants statement of case does not conform to CPR 16.4. No particulars are offered as to how the amount claimed is calculated nor is there a copy of the default notice referred to within the particulars of claim and most importantly, where the claimant is bringing this claim which is founded upon a written contract, namely a credit agreement they should serve a copy of that agreement with the particulars of claim

 

2. Consequently where the claimant has failed to provide the written documents that they rely upon, I am unable to admit or deny their claims and accordingly I put them to strict proof thereof.

 

3. Upon receipt of the claim form I wrote to the claimants requesting disclosure of documents that form the basis of their claim.the claimant replied stating XXXXXXXXXXXXXXXXXXXXXXXXXXXXX and supplying a copy of only the credit agreement which it is avvered is flawed and irredeemably unenforceable

 

4. Notwithstanding the above, the credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

5. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

6. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

7. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

8. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

9. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

10. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

11. improperly executed agreements may only be enforced by court order under section 65(1) but this is subject to certain qualifications

 

12. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

13. Therefore as the agreement supplied failed to include the prescribed terms it is unenforceable and the court is precluded from making an enforcement order

 

14. Accordingly the defendant denies that he is liable to the claimant and does not see what case there is to answer

 

15. In addition the defendant has not received a default notice nor is there reference to one within the POCs. The defendant notes that a default notice is a requirement of sections 87,88 and 89 of the CCA 1974 and without service of a default notice the claimant is not entitled to this action

 

16. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

17. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, this is confirmed by case law as well. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

18. I respectfully request permission from the court to allow me to amend this defence in light of any new items disclosed to me by the claimant

 

 

 

 

 

 

thats about the best i can do considering the ultra short notice i have had

[Aprd]

Bless you Paul, what can i say!

The above looks fantastic and I'm truly grateful for all the help given in this thread.

I’ll submit the defence ASAP and let everyone know the outcome over the next coming weeks.

 

Cheers

[pt2537]

Please, please, please let us know as soon as you hear from the court, there are some very very important time frames to observe during the court process and you really dont want to miss anything as you could have your case thrown out

 

i am sure that as long as your defence is accepted, this will be drawn to a conclusion very very quickly

[Aprd]

Thank you Paul, lesson learnt here. I will keep in touch by use of this thread as events unfold.

 

Most expensive camera I’ve ever bought.

 

£59.00 quid = £XXXX.62p (Total Payments made to Argos)

[Aprd]

Update:

 

We received a letter from Northampton Court stating that the claimant has 28 days to inform the court if they wish to continue with their present action.

 

I presume we don't have to do anything at this stage, but it does confirm our defence has been accepted.

 

Regards

 

Rich

[Aprd]

UPDATE: The time period for ARG Card Services to respond expired as of the 28th April, 2008.

 

So far we have not heard from them directly nor have we heard from Northhampton County Court, am i correct in thinking thats the end or is there something i now need to do to end this?

 

Thanks

[louise1111]

subbing as i have something similar going on!