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

[Vikingbird]

Thanks for that 42man. I never received any default notices and there are no copies of any in the DCA's bundle either. The copy credit agreement I received doesn't say anything about amount, dates or frequency of repayments or about credit limit. Like I said, it looks like it could relate to just about any debt/loan/credit I might have had with the original creditor. Although it has my signature on it, there is nothing there that proves it relates to the particular debt the DCA are pursuing. In other words, the prescribed terms are definitely missing. I have already mentioned the stuff about prescribed terms and default notices in my defence. You're right about the charges as well. There are none that I can see on the statements I eventually received, disappointingly enough. When I prepared my application to set aside I really thought it was a fair and reasonable assumption that there would have been excessive charges, so used this as part of my grounds to dispute the debt. At the time I had none of the statements to say for sure and had only 18 days to comply. The real substantial charges regarding this were levied on my current account for the returned DD's but that's another issue. Nor did I know about the need for them to supply a credit agreement at the time either. I wish I had. My application would have looked very different had I known my rights at the time.

Why does it not matter that they have provided the credit agreement (albeit with prescribed terms missing) two months late? I thought they were "committing an offence" if the default to comply with a CCA request continued for more than a month?

I am not in a position to reduce the debt to under £750 unless I should suddenly win the lottery jackpot or successfully rob a bank. There's just no chance, it's several thousand pounds and the DCA is smelling equity!

I have read several other threads but can't really find one person whose circumstances are identical to mine. There always seems to be something more they have in their favour that I don't. When reading the witness statement from the DCA Litigation Executive I can't seem to make up my mind whether it's really weak or very strong. How can he say my defence has little relevance to the matter? Does it not matter that the credit agreement they finally supplied doesn't contain the prescribed terms? Which is the judge likely to listen to? I honestly expect the judge to ask: "do you owe this money?" And what am I to say? Would it be adviseable to simply say "no, the credit agreement has no prescribed terms"? Why was I then previously making small token payments towards the debt? I have a really bad feeling about this next hearing and suspect I have been foolishly wasting my time constructing my futile defence, which according to the DCA agent should be dismissed as irrelevant. But maybe that's what they want me to think? How can the Consumer Credit Act be irrelevant? Surely it's in place for a very good reason? I'll be very disappointed and surprised if the judge ignores that fact.

[miss muppet]

VB, please don't get in a panic about this. In our experience it didn't matter that you were admitting the debt, you had tried to pay it as best you could but were continually harassed to pay more money? It is your right to have requested the agreement under CCA 1974, it does not matter where you get your advice from, its a free country and you can ask for help where you need it, after all when law students attend Uni at first they know nothing about the law and have to attend lectures/libraries and no doubt the internet to gain the knowledge they need.

The default notice is important and has to be in exactly the right form, if you didn't get any, put the dark side to strict proof of provision of this, same with letter of assignment.

Statement should contain relevant sections of the CCA

78(6) (if the creditor supplies this out of time, it still must contain the prescribed terms).(Section 60(1)CCA 1974 the regulations referred to are CCA(Agreements) Regulations 1982 (SI 1983/1553)

Judgement of Tuckey LJ in the case of Wilson and another v Hurstanger Ltd (2007)EWCA Civ 299 33. "In my judgement 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. These minimum provisions combined with the requirement under s61 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 the slightest mis-stated..."

Wilson v FCT (2003)All ER (D) 187 July which confirms that where a document does not contain the required terms under the CCA 1974 and the CC (Agreements) Regulations 1983 etc, the agreement cannot be enforced.

Excellent quote from website Francis Bennion - Home Page

Consumer Credit Act 1974 s 127(3)

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well argued article (30th August 2003) on Wilson v First County Trust Ltd (2003) UKHL 40 (2003)UKHL 40 (2003) 4 All ER 97:

"Dr Lawson may be interested to know that I included the provision in question (section 127(3) entirely on my own initiative. It seemed right to me that if the creditor company could n't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable and that the court should not have power to relieve it from this penalty. Nobody queried this and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed."

 

Have a good old read through of the Consumer Credit Act and it will all start to make more sense.

 

By the way, don't know whether you read my post, my daughter won her second set-aside hearing although the dark side have not paid the costs awarded yet and we have had to inform the court accordingly.

 

Don't panic read as much as you can and you'll be ok.

[WebMaster]

From VB:

 

Thanks for your post Miss Muppet. I did quote quite a bit already from

the Consumer Credit Act in my defence, including everything you quoted

(it's several pages long). It all makes sense to me, which is why I

can't understand that the dark side find it largely irrelevant and just

"reams of citations". I'm just worried that the judge will find it

irrelevant too and be more interested in whether I owe the money or not,

regardless of what Act I have quoted in my defence. I'm just not sure

what to answer to this. I don't really want to stutter some kind of dumb

Vicky Pollard response: yeah, but no, but yeah, but no, but yeah, but

no.

They did include a notice of assignment in their bundle, the same one I

had already received, nearly a year ago now. According to the Law of

Property Act, this should have been sent via recorded means but it was

just sent via ordinary post. Not sure if the judge will find this

important. At the end of the day, I received it, didn't I? What I am

sure of, however, is that there have been no default notices and the

copy credit agreement they sent does not contain the prescribed terms.

It really could refer to ANY debt I might have had with the original

creditor. I suppose this is a good thing?

[miss muppet]

Don't worry VB, if you have all of these points in your statement, the Judge will tend to lead you along.

 

With regard to the letter of assignment, did the dark side say they had to refer to the OC for the CCA? If so this is a good point, info received recently from Consumer Direct - "in our view a debt collector who has bought the debt is the creditor and as such takes on the liabilities of section 77. Under section 77(4) if the creditor is unable to provide this information, he is not entitled to enforce the debt while he remains in default. and continuing:-

 

The copy does have to be a "true copy". This is a technical term which has been discussed in a number of cases, mostly relating to bills of sale and the need to register a "true copy" of the bill with the High Court. These cases come from the days before typewriters when copies were made by hand. The consequences of filing a copy which was not a true copy were severe, since the bill would then be void and the creditor deprived of his security. Further:-

 

Under the Law of Propert Act for a debt to be assigned in law, there are three conditions:

The assignment must be absolute

The assignor must make the assignment in writing

express notice of the assignment must be given in writing to the debtor (see section 136 of the Law of Property Act 1925).

 

Also: - Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty dishcarging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this - to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

 

Hope the above helps and thanks 42 Man for your kind comments.

[WebMaster]

From VB:

 

Miss Muppet, I'm so happy to hear of your daughter's victory! That's

great news! I'm not allowed onto the forum threads at work so would you

mind telling me what happened at the hearing? What was the "clincher"

that swayed the judge's decision on your favour?

[miss muppet]

Basically I think all the points made in the statement plus I think he appreciated that she wasen't a rogue debtor i.e. someone taking out loads of money with no intention of paying it back but somebody who found herself in genuine difficulty who got very little help or assistance from the bank when she found herself in trouble. We pointed out that she had been making token payments through CCCS but was continually harassed to make larger payments. That was in a short statement handed to him at the start of the hearing.

 

Good luck VB, be calm and polite, with any luck the dark side won't turn up - another point which swung things in our favour I feel and I am sure you'll have some good news for us on Monday.

[Vikingbird]

You're very lucky they didn't turn up. I'm positive my dark side will. They did last time and I really don't think they would risk losing by default! I also made small token payments and was harassed to pay more ( I have since stopped making these payments until they can prove they are legally entitled to pursue the debt). I was told by someone else on this thread that making these payments actually wasn't a defence in itself and I shouldn't rely on it. So I'm quite (pleasantly) surprised that this actually resulted in the SD being set aside. I would have thought it would actually have gone against you, especially as she obviously didn't deny the debt. Before I was advised differently, that's basically what I said in my application but my defence raised entirely different points, i.e no CCA supplied etc. Hmmmm...not sure what my argument should be now. Do I stick to the application or the defence I submitted later? Maybe it will depend on what the judge decides to focus on.

[Vampyra]

I wish you all the very best of luck, VB - I've got one next week too and I didn't know about disclosure and although I SAR'ed the OC I only got a printout of the "account".

 

Looks like I might end up losing this.

[Vikingbird]

I have a feeling I might lose mine, too. I appreciate that people on this forum are trying to reassure me, and I have tried to do as I have been advised as best I can but I really don't think it's looking good for me. I just hope all my preparation hasn't been in vain.

However, I have just noticed that the notice of assigment I received nearly a year ago is slightly different to the one they have included in their court bundle. All of a sudden, they have added a couple of paragraphs about how they will comply with any request from me about my personal information and that I can send an S.A.R. to them with a fee of £10! How noble:rolleyes:! My original notice of assignment does not mention this at all! It is definitely not the same letter, there are other very minor discrepancies as well:mad:. Would it be worth mentioning this at the hearing or should i keep shtum about my notice of assignment? What do all you gurus think?

[42man]

The procedure to get a statutory demand set aside.

 

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy.

One method of avoiding bankruptcy is to get the statutory demand set aside.

To successfully get a statutory demand set aside one or more of the following must be satisfied:-

• The amount stated on the statutory demand is disputed.
  
• The person issuing the statutory demand also owes money. This is called a counterclaim.
  
• The person issuing the statutory demand is holding security that equals or exceeds the amount owing.
  
• The demand was issued in error.
  
• The amount owing is less than £750
  
• Execution has been stayed on a judgement debt.
  
• The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.
  
• The creditor failed to comply with the rules and prejudiced the debtor in the process.
  

[Vikingbird]

I did find these criteria as well when I first read up on SDs a few months back. That's why I thought the fact that I was already paying back the debt was a defence in itself and therefore I used this in my initial application (albeit not the amounts the DCA harrassed me to pay but nonetheless, all I could afford). I was later advised that this was NOT a defence. I suppose it's only the last two points that would apply in my case but at the time of writing my application I knew nothing of S.A.R. or CCA requests. They don't really answer my question whether I should mention the different notices of assignment at the hearing though

[42man]

Have you got an agreed payment plan in writing VB ? as if you don't dispute the debt....it's either that or the fact that the debt is disputed as they haven't sent a copy of your Consumer Credit Agreement.......

[WebMaster]

Message from VB:

 

 

No 42man, there's no agreed payment plan in writing with this particular

DCA. I just kept paying token amounts as I had done to the previous two

DCAs (which both, as far as I remember, did agree in writing to my

offers). I think I might save that argument for later, in case the judge

allows the SD to stand. It sounds too confusing and contradictory if I

use both this and the "no valid CCA" argument at the same hearing. I

either dispute the debt or I don't, right? I think, for now at least,

I'll stick to the "no valid CCA" argument. The copy CCA they supplied

really could be ANY agreement I might have with this creditor, of which

I do actually have several. Just because they have HANDWRITTEN the

account number at the top doesn't make it valid or prove that it relates

to this particular debt. There are no prescribed terms whatsoever, that

I'm absolutely certain of.

[42man]

OK VB, absolutely right in what you say....disputing it due to non production of the agreement and it containing the prescribed terms....(default notices ? notices of assignment from original creditor ? notice of assignment from DCA ?

 

As long as you have an understanding of the higher court case law, and a friendly judge !!!!

 

Do you want me to put in the case law here for you ?

[Vikingbird]

Yes, this will be the main part of my argument. No prescribed terms on the CCA. That and no default notices. It's still a bit annoying though, because the notice of assignment I received is not the same as the one in their court bundle. It has clearly been changed at a later stage to incorporate the S.A.R. info. It looks like they are just trying to cover their backs here, as if to say: "look, your honour, we clearly said in our letter that the debtor could ask for their personal information." I can categorically state that they have NEVER mentioned this in ANY correspondence to me before. That's why I'm in two minds about whether to mention it tomorrow or not. If I do, I would basically be admitting that I did indeed receive a notice of assignment (mind you, my defence merely argues that this was not served correctly ,not that it wasn't served at all). What would it mean for them if their letter was proven to be false/amended? Also, they had considerably longer reading through my application and defence than I have had reading through their court bundle. They had about a month and a half, I have had a mere 10 days! I think this would prejudice me slightly! Would the judge take this into consideration? I'm really sorry, I realise you folks actually have lives outside this forum, but I would greatly appreciate some feedback on this a.s.a.p. as it will be to late tomorrow! Heeeeeelp!

42man, if by "case law" you mean real life examples from court hearings/trials, then I have already included a few in my defence, which are relevant to this sort of thing (although the DCA legal bods are claiming they have little relevance and are trying to discredit my entire defence, calling it "spurious at best"). If not, then yes please post them here! And does it matter if a CCA request is sent subsequent to an SD being issued? The DCA seems to think it does. Weird, I would have thought a CCA request could be sent at any time.

[beanpole]

VB - CCA request can be made at any time.

If they had followed pre-action protocol correctly in the first place, then they should have provided ALL correctly served and valid documentation before or when issuing SD, which in itself is abuse of process for recovery of unsecured credit, instead of going to the County Court for CCJ.

It is not a spurrious argument. You are askingtoverify that EVERYTHING that they rely on is in order.

Stick to the facts and the law that supports it.

Good luck again.

[Vikingbird]

Thanks very much Beanpole! I'm drafting a skeleton argument/statement to hand to the judge at the moment. Hopefully I can keep it short and simple as I do have a tendency to waffle on a bit. But what of the different notices of assignment? Do I mention it? Surely something like that wouldn't look good for the dark side? They have in fact altered a legal document.

[beanpole]

Hi VB, just make sure you take all of your documentaton. and use as much of it as necessary.

I suppose it all depends how the CCA argument is received by the judge, then the fact that documents were not properly served - if they have falsified legal documents, then that cannot look good, although I don't know if it would have any bearing on the legal argument.

maybe someone else has a view ?

 

Will be thinking of you and wishing you well.

42 man, you have a view ?

[WebMaster]

News from VB:

 

Well folks, the suspense is over and it's good news, I'm sure you'll be

pleased to hear! The hearing was very short and sweet, the judge (who

was the spit of Donald Sutherland) looked over the paperwork briefly and

said he was satisfied that there were clear grounds to set aside and had

no choice but to do so. Too right! The copy CCA they had provided was a

joke (just as I suspected) but the real clincher, it seems, was the fact

that no default notices had been sent. There were even doubs raised

whether the debt was due at all! He did say at the end, however, that I

may have won the battle but perhaps not the war. I asked what happens

after an SD is set aside and he said that they will either grit their

teeth and bear the loss and move on or they will come after me with a

CCJ. The judge also said something to the dark side's agent about this

creditor being in "trouble". Not sure exactly what he meant and I didn't

pursue it but I suspect it might have something to do with their working

practices. They must be notoriously poor or something. I'm really

relieved and pleased now. I had such a bad feeling about the whole thing

and was sure I would lose but to my surprise, justice actually prevailed

in this instance and all my efforts paid off in the end. I just hope

I've heard the end of it. I would like to say a massive thank you to all

those who helped me with this and pointed me in the right direction.

Your encouragement, guidance and advice has been invaluable! I am

absolutely certain I could not have done it without you lovely people so

thank you thank you thank you!

[beanpole]

Oh VB,

well done,

congratulations.

well pleased for you

:grin:

[saintly_1]

Well Done thread title changed

[42man]

You don't know how pleased I am VB....I was slightly worried to be honest.....did you get costs by any chance ??

[42man]

To be honest and for those who read this thread in similar situations.....my own personal feeling was that out of all the stat demand threads on these forums, and despite having a clear dispute (although weaker than most), I felt that with a non friendly judge it could have been a different case...i'm delighted VB

[Doingmybest]

Well done init.

[Vikingbird]

Thanks everyone! You know, I completely forgot to mention anything about the costs at the hearing. I was thinking about it all the way to court, and actually after I left as well but I think the relief of having the SD set aside made me completely forget while I was still in the room and I didn't want to rock the boat. Typical! I did ask for costs to be awarded to me in my application though, will that still count? I was convinced too, apart from a couple of very important facts (no valid CCA and no default notices), that I had a weak case, but that's not the impression I got from the judge. He seemed to be in no doubt that the SD should be set aside. As these facts abviously spoke for themselves (I didn't have to say very much at all), perhaps it wouldn't have mattered whether the judge was good cop or bad cop. We can only speculate. He did also point out that DCAs were abusing the insolvency regime by basically using it as a means of debt collection. I totally agree. That'll teach them to issue SDs willy nilly. Talk about using a sledgehammer to crack a nut. Bet they wish they'd just let me keep paying my humble amounts now:D

Beanpole, when is it your turn?