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

[miss muppet]

I don't think I'd apply for an adjournment Shawn, think they will have had all the time they need in which to comply with your CCA and SAR requests, attending set aside with daughter next week, made sure I have got all the legal arguements typed up in a Background to the case, just seen an excellent example by 42 Man to-day, have got all copies of correspondence, one lot for Judge and one for us.

Its also worth complaining to your TS and the OFT, the OFT are looking at various DCA's Consumer Credit Licences right now, using an SD as a means to forcing debtor to pay is an abuse of court process.

Hope Cancer treatment is going OK, you could do without all this right now but thats the way it goes unfortunately, it happened to me four years ago.

[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!

[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'

[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.

[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.

[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.

[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.

[miss muppet]

Thrilled to hear your news VB, you had obviously prepared very well which is the key when faced with this horrible situation. This has really cheered me up as have been moping all week as Beanpole knows due to having to put our dear old family member Arnie the cat to sleep, he was a good age of 15 and 7 months and we still have his twin sister and his mother who is even older but your news had me punching the air.

 

Looking forward to the next bit of good news from Beanpole.