Hearing to have SD set aside**Set Aside**

[elliej1981]

hiya, me and hubby are in exactly the same situation. Hubby was served with a SD by Largo in regards to debts from HSBC, we sent a CCA request and a SAR, by the time the court date arrived still no CCA, attended court (as did a Largo representative) case has been adjourned for 4 weeks as the judge laughed at the state of Largos paper work... The court case is now in a couple of weeks and still no CCA, im worried as last time i went to court the judge said that bank charges were not a reasonable defence and that if next time nothing had changed then he would have to rule in largos favour. I know that they wont have a CCA in my husbands name for at least one of the debts, as it was for an over draft on a HSBC staff account, which was in my name (he was an additional card holder!!!) it just doesnt seem fair that when other companies have accepted the same repayment for larger debts Largo do something like this i just wish there was some sort of way to get largo to withdraw the SD so i wouldn't have to go to court again

[Vikingbird]

Hmmmm...elliej, that doesn't sound promising, does it? What is the judge waiting for then? For Largo or HSBC to cough up a credit agreement? And if they don't, will he still rule in Largo's favour? I don't understand it. What does he mean "if nothing had changed?" I makes no sense. If nothing changes, that's good for your husband, right? For something to change, Largo would have to produce a credit agreement, wouldn't they? That really would change things! Surely, then, if the status quo remains the same, the judge will have no choice but to rule in your husband's favour. I have spent several days preparing my defence, basically focusing on how important it is for Largo to produce a credit agreement otherwise they won't have a leg to stand on, or so I have been lead to believe. I hope I haven't wasted my time. Since the judge laughed at Largo's paperwork, what did they actually have with them? Did your husband submit a defence beforehand? Was the hearing adjourned based on the fact that "the dark side" hadn't been given enough time to comply with your CCA & S.A.R.? I still haven't received anything from my S.A.R. and there's about 10 days left to the deadline. The CCA request has long since been defaulted on so I'm not worried about that one. I have already asked for an adjournment but if I don't hear anything, I'll go along next Friday anyway and see what happens. I'll submit my defence to the Court tomorrow and the judge had better read it, cos it's fab:Dha ha! On your hearing letter, was Largo mentioned at all? On my hearing letter it's just me, myself and I and the judge. Worryingly, no one else seems to have received anything like it. Why is it just me? Don't know whether it's a good or bad sign. Of all my creditors, Largo have by far been the most hard-core and unreasonable. Maybe bank charges aren't a reasonable defence, I don't know, but surely it's reasonable grounds to dispute a debt?

Oh, by the way, beanpole, I have since found out what the mysterious part 3.4 referred to and I have made sure to include it in my defence!

[WebMaster]

Another message from vikingbird (who can't post while at work):

 

I am due to submit my Defence to the Court today (not sure if it's 7

working days or 7 calendar days before the date of the hearing) and from

what I can understand, I should send one to Largo as well. What happens

if I don't? Do I really want them to know what kind of ammunition I have

at this stage? I'm loathe to give them the heads-up! They won't even be

present at the hearing next Friday, so do they really need to see it

yet? Wouldn't I also have to sign it? I was advised not to sign my CCA

and S.A.R. due to the possibility of Largo photoshopping the signature

onto a bogus credit agreement. If I send them a signed Defence, they

could use this signature for the same purpose, couldn't they? If anyone

who knows better can't advise to the contrary by 3.30-ish today, I'll

just follow my gut instinct and submit the Defence to the Court only and

only if a hearing is called summoning both myself AND Largo, will I send

them a copy as well. The most important thing for now is that the judge

gets to read it, right?

Got a letter from the Court today saying they would be unable to adjourn

the hearing without the creditor's consent. As they haven't been invited

to the hearing I fail to see why they need to give consent. Fine, then,

I'll go a long to the hearing and no doubt it will need to be adjourned

anyway as the 40-day S.A.R.deadline expires the day after the hearing.

DOH!

[Vikingbird]

Submitted my defence to the court today. When I asked about whether I had to send a copy to the dark side as well they said that although it was common procedure, it was really up to me at the end of the day. It is enough that I bring an extra copy along on the day of the hearing, in case they turn up. Fine with me, I certainly don't owe them any favours and don't see why I should help them out in any way. On the day of the hearing I shall wear heavy, black eyeliner, wave my hands about like a Jedi and basically my defence will be this: "Look into my eyes, the eyes, not around the eyes, don't look around the eyes, look into my eyes, 3-2-1, snap, you're under! When I snap my fingers again you will be convinced that we have agreed to write off the debt and that this whole sorry business will be struck out. 1.2.3, snap, you're back in the room!" Ha ha ha, think that'll work ?

I'm still a bit miffed about the dark side needing to give their consent to adjourn the hearing, though. My husband had a hearing adjourned several times without the dark side needing to agree once.

[elliej1981]

Sorry for the delay. hope everything goes well x i had no idea i had to post a defence either! :-s Largos defence arrived a day before the case. The judge didnt have a copy. As Largo hadn't produced the CCA's they bought along letters that we'd sent offering payments, they said that these were proof that the debt was ours. Im not sure what had happened but we were served with 3 Sd's, so completed 3 lots of paper work and took them to the court. But when it came to the cases we only received paper work for one, the judge a different one and Largo the other! The letter that Largo had bought along had no mention of the account judge had the details for, which is why the judge told him he had to go away and sort out his paper work! I'm not sure what the judge is going to do if we have to go again, i've spoken to LARGO who just said that what i was saying was rubbish and that anyone can serve a SD and they did not need any other paper work at all, all the details they have on the debt are on an excel spreadsheet that they have been sent by HSBC, and that was all the details they needed!!!

[beanpole]

Wrong ellie.....do not get into a discussion with them...only via letter correspondence and only based o facts.

They are wrong, this is insufficient proof.

DO NOT be put off.

They must produce documents as per the law; s78 Consumer agreement 1974. You are 'in dispute' and they need proof.

Read up on all other similar cases so you can be confident on the argument.

 

What is your original thread called, otherwise Vikingbird's own thread will get confused ?

 

see my thread also.

 

Beanpole

[Vikingbird]

Just an update. The CAB finally got back to me about my defence (my "old" defence that is, before I beefed it up to 12 pages). They said that the whole business of assigning debt is a bit of a grey area as far as the responsibilities of the DCA is concerned and they suggested that I, although it isn't law, also quote from the new OFT guidelines regarding debt assigned to DCAs. Apparently they are very specific regarding DCAs having the same obligations and duties as the original creditor in respect of providing debtors with information. Not only have Largo defaulted on my CCA request, they just don't seem to be in possession of the credit agreement, period! Perhaps it was unnecessary then, to send an S.A.R. to the original creditor as they don't really have anything to do with it anymore. Oh well, too late. Don't know why I get the unnerving feeling that I might possibly be more versed up on this than even the judge will be:eek:! I really hope that's not the case! Gonna have a look at those OFT guidelines now and see if I can find the bit the CAB were talking about. No doubt it'll be like looking for a needle in a haystack:rolleyes:

[WebMaster]

Vikingbird says:

 

HELP! I have just received a letter from HSBC saying that they will be

sending by courier the information I asked for in my S.A.R. tomorrow!

That's the day before the hearing! Has anyone else received this sort of

response to their S.A.R? Does anyone know what they are likely to send?

I have already prepared and submitted my defence based on no CCA so,

depending on what their "package" contains, I'm not sure if this defence

will still be valid. Has Largo been informed as well about this info

being sent to me? I'm not going to be at home to sign for it tomorrow or

on Friday so I am at a complete loss at what to do now! What if it does

contain a CCA? What is the likelihood of that? I would really

appreaciate some advice here as there's not much time left to change

things before the hearing! They've really left it until the eleventh hour!

hour!

[beanpole]

Vikingbird.....good luck with the hearing....will be thinking of you and wish you the very best......post an update when you can..

 

.. just try to remain calm in the hearing, take your time and try to focus on one point at a time so that it is easier for the judge to follow your argument...

...be confident in your facts in front of the judge...it is the DCA that must deliver up the CCA as per s78 to be able to enforce the alleged debt....and if they haven't formally proven the assignment, even more fuel to your fire.

 

finally.....don't be put off if anyone from the other side does turn up and do not assume anything....if they do, then perhaps worth asking in front of the judge, who they are, what is their position (job/company) and in what capacity are they there.....after all, they will know who you are.....all perfectly reasonable and that way you will be able to refer to them by name, if needs be later.

 

Best of Luck.

[tinkerbell20]

Good luck

[WebMaster]

Another message from vikingbird:

 

 

Well, I've just returned from court. The hearing lasted all of 10

minutes. The judge happily said: "it looks like both sides want to

adjourn, so let's adjourn!" He wanted to just leave it at that. The dark

side had only faxed the court the day before the hearing to request an

adjournment. They had some dodgy "agent" attending. He claimed he didn't

know why he was there and that they had not received a copy of my

application/affidavit, which apparently the court was supposed to have

forwarded to them. I think he lied about this but I can't prove it. I

said they were still in default of my CCA request. I could see a copy of

my CCA request across the table in his court bundle, so I know they have

received that at least. I did say to the judge that next time we meet,

they would still be in default on my CCA request, so nothing would

change there. The judge asked if this was under the Freedom of

Information Act and I was a bit thrown by that. It's the Data Protection

Act, isn't it? I'm not meant to send them yet another CCA request, am I?

Not very much else was said at the hearing and I'm a tad annoyed that

this isn't over yet. While they are in default of my CCA request, would

I be within my right to stop making payments?

I wish I knew what I know now, when I did the affidavit. It would have

looked completely different. Can I withdraw it, or is it too late now?

I'm also really worried about the original creditor's response to my

S.A.R. I still haven't been around to sign for the delivery and I'm

dreading what might be in it. Of course, I could just plead ignorance

and say I never received the letter saying they were going to courier

the stuff. This letter was only sent by ordinary, non-recorded post.

Eventually, the "package" will be returned to the OC as undelivered.

Phew absolutely knackered now. Been tense for weeks. Will have a few

well earned stiff drinks tonight! And then, eventually, the whole

palaver will start again! GRRRRR

[josh8]

poor u i was hoping when i go on mon 28th it would be all over but may be not !!!!!!!!!!!!! it look hope full for u

[Vikingbird]

Just need some more advice, please. While the creditor is in default of my CCA request, should I stop making payments to them? If I continue, it looks as if I'm acknowledging the debt and if I stop, it'll just give them one more thing to use against me. Damned if I do and damned if I don't! What should I do????? And can I withdraw my original affidavit and submit another one? I was totally unaware of my rights when I wrote my why-don't-I-just-shoot-myself-in-the-foot affidavit and as a result it's completely RUBBISH!!! I'm done for if it's the affidavit and not my subsequently submitted 12-page defence that will be the focus on the day of the next hearing.

[tinkerbell20]

Don't think it matters much if you keep paying at moment. If agreement is unenforceable then the courts can't enforce it.

[Vikingbird]

Well, one would think so. It's just a waiting game at the moment. I think it all depends on the judge's whim on the day by the sound of some other poor sods' experience in the court. I bet he won't even bother reading my defence. He'll probably ask straight out if I have a debt with them and what am I going to say? Yes? No? Yes, but not one that's enforceable? I really don't want to put my foot in it!

[miss muppet]

Sorry to hear about your experience VB which was much the same as ours!

Your request was under the Consumer Credit Act 1974 for a true copy of the executed agreement. Read up about Default notices and what they should contain, Tomterm has an excellent sticky on this and what should be in it, also make sure you know about notices of assignment. Your Subject Access Request is the request made under the Data Protection Act and the reason you want this is to see all the information they hold on you and exposing any dodgy charges on your account. I have just found a very interesting thread on the General Debt Industry forum with information supplied by 42 man and baby bear on these very issues plus info on the new unfair commercial practices directive.

I am in the process of writing script for daughter but this hot weather is making things difficult.

Its b annoying about the affadavit as this is what happened to us as well and I had to send another copy to the dark side, they haven't replied, in fact having written non stop letters before the set side hearing its now nada, zilch, praps they've gone on their DCA bonus holidays!

[Vikingbird]

I definitely didn't receive any default notices. Certainly not from Largo. Is that where the default notices should come from and not the original creditor? I did get a notice of assignment but apparently, according to the Law of Property Act, this wasn't served properly (should've been by registered post but wasn't). All this, and much more, is already in my submitted defence. Wonder if I should send this to Largo as well. Maybe it would put them straight and make them think twice if they read it. I'm so worried about what might be in the bundle from HSBC that I daren't go pick it up! What if it contains a bona fide credit agreement! I'm screwed! I think I'll wisely keep quiet about this in court and say I haven't received a sausage!

[miss muppet]

Hi VB, absolutely right about the assignment notice, the default notice should be in the name of the original creditor and it should have the wording and amount absolutely correct, Tomterm has a good sticky on this, think its in the stickys on the General Debt forum under Basic Guide to Consumer Credit etc. Also have a look at the CCA 1974 which is in the sticky's on legal issues on the home page. You haven't had the bundle yet have you, think if they'd have had it you would have been shoved a copy by now and if that was the case why didn't the "agent" turn up with it at court. You sound just like me after our horrible experience, we felt completely stuffed for about a week, have got our second wind now tho'

[WebMaster]

message from vikingbird:

 

No, I haven't been to pick up the bundle from the holding depot yet and

I'm not going to. I dread to think what might be in it, I was really

hoping they would send nothing! The "agent" or Largo knows nothing of it

anyway so why bring it to their attention. The bundle is from HSBC (as a

result of the S.A.R. to them), who probably don't even know I've been

served with an SD. If I was ever sent any default notices, I certainly

don't have them any more. I really can't remember, it's a few years ago

now and I've slept since then. At any rate, Largo have long since

defaulted on my CCA request and surely that must be my strongest

defence. After all, they are the ones who served the SD, not HSBC.

Apparently Largo have now "committed an offence". I have no idea what

that entails for them and how they will be "punished". No doubt the judge will just ignore that fact anyway, as they arbitrarily seem to do.

[miss muppet]

Hi VB, just thought I'd update you. Having written to court requesting info regarding whether first affadavit was sent to the dark side, just heard to-day they confirm it was and have put evidence with case notes, I can get a copy if I send £5. so think I will to make doubly sure.

[beanpole]

Vikingbird,

what is the latest ?

[Vikingbird]

Haven't been on the forum for a while and just got back from holiday yesterday. In the post were some documents from the DCA, in two separate envelopes, one letter dated 16 Sept (containing copy of finance agreement with original creditor, a print out of their annotated notes from their computer system and copy notices of assigment), the other dated 17 Sept (containing another copy of the finance agreement, notice of acting, witness statement in opposition to my application and statement of costs). Isn't this a bit late? They were supposed to supply me with a copy of the CCA around 10th July, if my memory serves me correctly. This is over two months late! They defaulted on my request quite some time ago! Anyway, the credit card agreement they have supplied doesn't mention anything about the amount of the debt, the amount or frequency of the repayments and doesn't specify anywhere that it really relates to the same debt the DCA is pursuing. This really could be one of several possible debts I might have with the same original creditor. There's nothing to tie the two together. Another thing which forum members may find worrying is that in the DCA's bundle is a print out of some poor bloke's entire thread from this forum! I shan't mention the member's username. I find it odd that they found it necessary to find out where I had gotten my defence from. So what if I found it on this forum? I'd have to get it from somewhere, as I certainly wouldn't have been able to come up with all that myself! I don't see why it should matter where I got it from. It seems they are trying to invalidate it somehow, as they are basically saying it has little relevance in this matter as it's not a trial but an application for a set aside. They are also quoting other advice given on this forum which they "find concerning". This seems a bit desperate to me. Is this really the best they can come up with? The points in my defence are still valid, as far as I'm concerned. Besides, I'm a litigant in person and cannot be expected to be a jour with the correct legal terminology. Also, the DCA has had considerably more time to go through my defence than I have had to go through their witness statement. Should I ask for another adjournment, perhaps?

[42man]

OK Viking......

 

So we are at the stage where you will have to attend another hearing....

 

I have got a couple of questions.....

 

On the stat demand was there a name and telephone of somebody you could call ? (don't call them).....

 

How was the original demand served ? post ? 1st class ? 2nd class ?

 

Did HSBC ever comply with your Subject Access Request ?

[WebMaster]

Message from VB:

 

 

Yes, the next hearing is next Monday. So they haven't given me as much

time to go through their documents as they had to go through mine. There

were both a name and a number on the SD to contact but I didn't call or

write. It was served by hand, unfortunately.

[42man]

OK we need some clarity of thought here, and you will have to have a good read through some of the other threads, they have complied with the CCA request, the fact it was outside the default time doesn't really matter now as they have provided it....you need to dispute the debt to get the stat demand set aside, I think in your case you may have to get involved in the technicalities of the Consumer Credit Act....

 

No excessive charges, so it can't be disputed there.....

 

Do the default notices comply ?

 

Taken from Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Quote:

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

 

Regulation 2(2)

 

Details of agreement

 

 

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

 

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

And does it contain the prescribed terms ?

 

CCA RULES FOR 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 – see Q1.21.

 

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.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

This below is reproduced courtesy of Peter Bard

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

 

 

Can you pay to reduce the debt below £750 (as that is the bankruptcy threshold ?)