newbie today

[nicklea]

fedup,

 

I suggest that you send a pm to pt2537 he should be able to offer advice.

 

However, what people will need to know in some detail in order to help you is the following (leaving out any personal details)

 

What was the debt for (credit card loan current account etc)?

 

Was this court hearing for the charging order or to get the CCJ? So did you already have a CCJ before this occasion in court?

 

Who was the claimant on the court form?

 

What exactly was on the Particulars of Claim from the court? By that, I mean what did the claim actually say? eg The Claimant claims £xxx because

 

What exactly did you submit as your defence?

 

What happened on the day when you were at court?

 

I know this seems a lot of questions, but to get the best advice people will need to know this

[nicklea]

fedup,

 

EDIT - ignore this post you just posted the answers

[nicklea]

OK,

 

You really do the help of some one like pt2537.

 

The first thing you need to do is to apply to get the CCJ set aside. Have a read around here for posts about setting aside a CCJ.

 

As this all happened in Northampton it means that the case wasn't defended and the Debt Management Company simply admitted the debt or didn't respond at all.

 

I don't know how difficult that is going to be to overcome.

 

I would suggest sending an sar to HFC to get all the information they have about you and mention in particular that you want the original signed agreement. This costs £10 to send

 

With regard to how the debt ended up at £29k that depends on the t&cs of the agreement. So you can't really tell anything until you get all the documents from HFC.

 

Hope this is of some help

[nicklea]

fedup,

 

I think that it would be best to send them an sar asking for all the information they hold on you. Have a look around on the site for examples of letters.

 

In the sar, specifically ask for the original signed agreement along with everything else. They are supposed to reply to this within 40 days.

 

You could also send them a s10 dpa notice on the grounds that you don't believe there is a signed agreement in existance. This is free to do and they are supposed to reply in 21 days. If they don't do this then you can go to court and force them to do it.

 

To be honest, until you've got the original signed agreement there's not a lot that you can do, so you would be best (in my opinion) to keep on pressing them until they do respond.

 

If you were to go to court asking for the CCJ to be set aside just on the grounds that they hadn't responded to your s77/78 request, I don't know how successful that would be. But if you were to go to court with an agreement that wasn't enforceable then you would be much more likely to get it set aside.

 

If they are saying that the original loan was for £19k then it sounds either like they have got the figures wrong or you had ppi with the loan. ppi pays out if you're sick, unemployed etc. There's a separate section of the forum that you might want to look at that deals with ppi to see if you might have any grounds for claiming that the ppi was missold. By the way, if it was ppi, were your circumatances such that you could have made a claim under it - it usually covers just sickness and unemployment?

 

 

A s10 dpa notice would look something like this:-

 

The Data Controller

HFC

Notice Pursuant to Section 10, Data Protection Act 1998

Account No: xxxxxxxx

Dear Sir,

Take Notice that I require you to cease entirely from processing, or else that you do not begin to process, any personal data of which I am the subject within 7 days of the receipt by you of this notice.

This includes particularly, but is not limited to, any processing involving the communication or passing of personal data of which I am the subject to any third party insofar as the said data relates wholly or in part to any alleged agreement between us.

This Notice is given on the ground that there is no signed agreement in existence that entitles you to process my personal data.

Further, the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or distress to me in addition to that which may already have been caused and that, as the processing of the said data in the way referred to in this notice would violate the first, fourth and sixth principles of the Data Protection Act 1998, to do so would be unwarranted.

If you fail to respond to this notice within the prescribed timescale I will make an application to the court under Section 10(4) Data Protection Act that you be ordered to comply with this notice.

This letter has been sent by Recorded Delivery.

Yours faithfully,

 

 

 

Hope this is helpful

[nicklea]

Hi fedup,

 

You haven't said anything about what this order was. Could you type up the details of the order?

 

Depending on what was actually said in the order they may or may not have complied with it.

 

I'm afraid that you are wrong when you say that s77/78 requires an agreement with a signature.

 

It is actually s61 that is the relevant bit. Without a properly signed agreement they don't have aleg to stand on:-

 

61. — (1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b)the document embodies all the terms of the agreement, other than implied terms, and

 

©the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

 

 

Then the court cannot make an enforcement order due to s127:-

 

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).

 

 

hope this helps

[nicklea]

ok, the judge ordering them to provide statements of the account isn't ordering them to supply a copy of the agreement.

 

Part of your application to get it setaside will involve saying that there isn't

an enforceable agreement.

 

A good thread to read about getting a ccj set aside is here, this will show you what you need to do next:-

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/116860-ccj-but-no-claim.html#post1175378

 

and here:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/143966-court-date-arrived-t.html#post1513539

 

The ppi is a separate issue and there is a different section of the forum where you will be able to get some good advice on that issue.

 

With the statements that you received, if you either post them up here or, if you're not happy with that send them on a pm to me and I will have a look at them to see if they're ok.

 

hope this helps

[nicklea]

77(1) and 78(1) both state that the creditor under a regulated agreement shall give the debtor a copy of the executed agreement.

 

Rory,

 

I said that an agreement with a signature is not required and this is also stated in the OFT guidance that you quoted in your post:-

 

 

The name, address and signature of the debtor do

not have to be provided.

 

 

regards

 

nicklea

[nicklea]

Ok, so it sounds as though you have already admitted the debt and had a CCJ awarded against you. Is this correct?

 

What you need to do is to see if there are any grounds for getting it set aside. However, it may prove difficult if you have already admitted the debt to the court. If you simply failed to respond to the summons, or didn't respond in time then you will have a better chance of getting the CCJ set aside.

 

i would sugges you search the site for threads on setting aside a CCJ - there are some very informative threads

 

for example:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/125173-getting-ccj-overturned-5.html

[nicklea]

The consumer credit act changed in march 2006

 

Only certain parts of it did. Other parts didn't come into effect until 2007 and yet other parts didn't come into effect until two months ago and some won't come into effect until October of this year.

 

,my understanding is that an agreement drawn up after this date does not require a signiture to be enforced.

 

I believe you are wrong here. I would be interested to know your authority for this. Perhaps, you may be thinking about s15 which deals with the repeal of s127(3) - (5)?

[nicklea]

When a copy of the agreement is sent under s77/s78 it doesn't have to have a signature on it. If you were to request the original agreement with an sar then they would have to provide it.

 

What the solicitor says is correct, it has already been admitted in court. It is always open to you to go back to court and request that it is set aside but that is definitely an uphill struggle (even more so after the debt has already been admitted).

 

You don't necessarily need to be put off by that but you will need to be very sure of your arguments. Also, do be aware that if you are unsuccessful the other side will be able to claim their expenses from you as well.

 

If you could scan the agreement that was sent to you (especially the terms and conditions) then that may give a clue as to why the debt is so much. It may also (although this is a small possibility) show that the figure is wrong and that will give some extra strength to your argument.

[nicklea]

fedup,

 

If you sign up to photobucket (it's free):-

 

Image hosting, free photo sharing & video sharing at Photobucket

 

Then you can put the agreement there and just post a link to it on this thread

[nicklea]

ok,

 

So you've signed up for photobucket?

 

click on "albums & upload" in the top left

 

Then on the left where it says "Upload Images & Video" you will see it blue that it says "old uploader" in blue - click on this - I find this easier to use

 

It will take you to another page and this will have a button which says Browse.

 

Click on this and it will open up your windows explorer so you can search for the file.

 

You then upload the file. It takes a bit of time.

 

When you've finished everything go back to the album page and down the bottom of the page you will see a small version of the file. Just below that is a link that says "Direct Link" copy that link and post it here:-

 

http://i281.photobucket.com/albums/kk204/nickleatony/IMG_0105.jpg

[nicklea]

HI fedup,

 

I'm afraid that you might get a bit fedup (pun!) with this request. I had a look at the images you posted.

 

Three of them are for the same front page of the agreement. Was this intentional?

 

On the front page it says "condition 3(6) overleaf" - did you get any other pages from them? The term that says whether they can charge this extra interest will be near there.

[nicklea]

ok,

 

Unfortunately, this doesn't really help much as you really do need to see that missing page of the terms and conditions to see if the judgement should have been for £30k.

 

What this all revolves around is whether or not there is what is called a post judgement interest term in the agreement. This term will read something like "interest will be charged on all late payments outstanding before and after any judgement (such obligation to be independent of and not to merge with the judgment)."

 

This allows them to carry on charging interest after they have got the CCJ. However, if there is this term then they shouldn't have got a judgement for the full £30k, they should have taken account of the Consumer Credit (Early Settlement) Regulations 2004 which basically gives you a rebate on the amount owing.

 

If they do not have a term like that in the agreement then they can claim the full amount, however, if you canmanage to somehow pay the full amount before the original end date of the loan then you must be given a discount.

 

There are a couple of threads here which might prove interesting (or not - they're a bit of a heavy read):-

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/139880-warning-pji-post-judgment.html?highlight=southern#post1489111

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/120043-womble-72-northern-rock-13.html?highlight=southern#post1323420

 

 

 

Another couple of points to think about.

 

You will probably need to do this separately now because it's a bit too late to use as a counterclaim, but I would seriously suggest you read some of the stickies here about making a claim for misselling of ppi:-

 

http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/

 

It may be worth making a claim for damages from them for mis selling the ppi

 

Also, you originally mentioned that you had a loan for £15k yet I notice that £126.49 of this went on paying off an existing acccount. Did you actually have an existing account with them at the time?

[nicklea]

We have sent S.A.R - (Subject Access Request) to OC and are awaiting their info but even on the statement from them the loan starts off at £19k on 13/06/06 on the solicitors one the opening balance is £30.5k.

 

The loan is £19k because you also took out ppi as well. This is added to the £15k

 

on the solicitors one the opening balance is £30.5k

 

This is the total amount repayable over the course of the loan. It all comes back to that missing page of the agreement with the t&cs. It will say on there if they can claim interest after judgement or not and so you will be able to tell if they can claim the higher figure

 

Also on that 1st sheet it says "You have NO right to cancel this agreement under the CCA 1974, the Timeshare Act 1992 or the Financial Services(Distance Marketing) Regulations 2004. What's that all about:confused:

 

This was just something that was added so that consumers are aware of this fact