Help pls with process: SD-Set aside hearing next week - **WON** PLUS COSTS AWARDED

[beanpole]

For background, please see my Original thread in Debt Collection Industry (sorry don't know how to link these together !).

 

Had SD issued by hand, from Legal & Receivables from HSBC assigned debt.

I issued CCA request and applied to my local court for set aside, using all the great advice and templates from the forum (thanks again everyone so far).

 

Today is the 12th day after receiving my CCA request and nothing back except acknowledgement letter saying that LARGO were contacting their client for info' (Phoenix and LARGO same company ?!)...so I'm really hoping nothing can be produced before the ultimate 30 day deadline.

 

Problem is, my court gave me a hearing date of 17th July, so although the 12 days will have expired, the 30 days will not.

 

Yesterday I sent S.A.R - (Subject Access Request) to HSBC, but they have 40 days to respond.

 

So, what happens now.....is there anything I should do before the hearing ?

I was under the impression from reading the forum that I must submit my defence against the SD, to the court 7 days before the set aside hearing, which only leaves me tomorrow.

Is it the full defence as I have seen elsewhere on the forum, defending CCJ's etc ?

If I am the Applicant in the set aside, what else do I need to do ?

I have issued a full rationale (using forum help, with case law cited) to the court and will take along all my documents, but I would really appreciate advice on what else would be good to do.

 

I am aware that I could also ask L&R for a copy of their complaints procedure (wait until 30 days up ?) and I could argue abuse of process going straight to SD and threat of bankrupty proceedings, so any advice on next steps would be really helpful.

 

Here's hoping

Beanpole

[42man]

You seem to have done well so far, remember they are already in DEFAULT of your request for the agreement to be produced, and go for a dismissal if you can as opposed to a set aside....

 

Just in case the judge brings up the new CCA regulations from 2006, then quote this to him....your agreement is alledged pre 2006....

 

PRE 2006 agreement legislation…

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

 

Version 1 of 1

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007.

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

(a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007.

Ian McCartney

Minister for Trade, Investment and Foreign Affairs

Department of Trade and Industry

23rd January 2007

Dont forget your case law....

Excessive charges, non production of defaults, no notices of assignments.....take copies of the letters, and proof of postage with you too...

and your costs also...you may be lucky and they may not turn up !!!

[42man]

posted twice !!

[beanpole]

many, many thanks for your help.....couldn't have got to here even, without such support !

I definitely have all the back-up as you suggested, with case law cited.

Could you please confirm if I need to submit full defence to the SD 7 days before the set-aside / strike out hearing, or does that come later if the process continues ??

 

thanks

Beanpole

[42man]

I may be wrong on this but I was led to believe that you had to get the details in 7days before the hearing, one copy to the court and one to the opposing sols...

[miss muppet]

Hope you're wrong on that one 42man coz all we did for family member was use Tomterm's short version of the affadavit on form 6.5. for the set aside and took it into the court to be witnessed, very easy 5 minute job swearing it in front of the legal person.Since then when we got the hearing date, sent in GaryH's fuller version at the same time as requesting permission to act as Mackenzie friend. They may not take much notice of the fuller version until we attend court as it wasen't sworn but have made sure I've got all the legal terms and background to the case sorted for the hearing.

[beanpole]

Hi all,

Im a little confused, so would appreciate some more advice please.

 

Miss Muppet, I did a full application on my 6.5 set aside, quoting case law, but what I am trying to establish, is whether or not I should file a full defence to the original Statutory Demand, ahead of the set aside hearing (on 17th July).

42man, thanks for advice....I'm was going to ask the court about procedure as well.

Reading around other threads suggests that the full defence (quoting CPR etc) is normally submitted in response to the DCA/creditor taking individuals to the County Court (eg for Charging Order), after the initial expiration of 12/30 day deadline to respond to a CCA request.

 

That is not my current situation:

The DCA went straight from normal letter to Stat' Demand for full payment.

They have threatened that they will issue petition for bankruptcy otherwise, so this is why I submitted my Set Aside application within the 18 ay deadline.

As I am the Applicant, asking the Court to set aside the SD, isn't it the DCA that needs to defend this and produce ?

What hapens if they do attend the hearing and magically produce all documents ? I assume I ask for an adjournement to prepare a defence ?

 

If today, nothing turns up in the post (dreading that drop through letterbox), or tomorrow, then the DCA will have failed to produce documents within 12 days (+2), so I hope this will result in a strike out of the SD as 42man suggested earlier.

 

If I don't get any other advice, I will prepare full defence and personally deliver it to Court....but don't want to do this if not necessary yet (ie save the ammunition in cse need it later ?)

I attach the Set aside application that has been sworn and accepted by the court last week, showing my argument.

 

Thanks to anyone who can give me a definitive view on this stage of the process and if a full defence should be submitted, or if done after 'set aside' hearing ?....again a million thanks for all other advice here and on my original thread.

 

Beanpole

Application to set aside 6-5[1] edited out.doc

[42man]

Interesting as you haven't mentioned a 'letter before action'....!! which I believe they should have given you also...

[beanpole]

To clarify, yes they did send letter, saying they were issuing a SD, but it was dated same day as the SD was signed at their end, so they had already determined that it was to be issued !!

Although I spoke to them, between that date and the actual serving of the SD, telling them I was referring to the CCCS - it always takes days/weeks to get an appointment - (I have maintained a budget & expenditure update with a CCCS Client number, which I always quote), L&R told me they were proceeding anyway to a bankruptcy petition, so maybe there is something here about abuse of process, or CPR ??

 

So I have now spoken to the Court, just now, asking if I need to file a full defence to the SD, ahead of hearing my application to set aside.

The Civil office could not advise me and suggested I take advice elsewhere (eg CAB !), so I am now, none the wiser.

 

Any other advice please, as I only have until tomorrow, to fall within 7 days before the hearing. A little difficult to put full defence together as we are still within the 30 day CCA request deadline and today is 14th day since I sent fax request / 12 days since formal receipt via Special Delivery.

No post yet today, so still no idea if they have any documentation to defend against my Set Aside Applicaton.

 

Fingers crossed.

Any thoughts/advice please.

 

Thanks

Beanpole

[miss muppet]

As you've got such a tight deadline, don't think it would hurt to hand the full defence in, have heard that sometimes judges set aside without a hearing so its worth a try.

 

Very nervous to-night, daughter's hearing is tomorrow. Must say the court wasen't that helpful to you were they, still suppose they've got to stay impartial. I asked advice because "the dark side" said they'd asked their solicitors to set aside the SD, lady at court was very cagey as its my daughter not me but when I explained I did all the correspondence for her, said well, we haven't had any correspondence from "the dark side". So next letter we got from them said OC had repurchased so it was no longer their responsibility we naturally knew they were telling porkies!

[beanpole]

OK, thanks to all your help so far.....

 

Miss Muppet, I hope all went ok at your daughter's hearing.

 

In my case...

I did submit a full defence to the Statutory Demand, at the Court on Thursday; 7 days before the hearing for my set aside application and sent copy to the 'other side'. I have no idea if they have a solicitor, or indeed if they will turn up at the hearing, so I sent copy of the defence to the person at L&R that issued the SD anyway.

 

It is all a bit tricky as the timings overlap....Monday will be the 12th working day since they received my request for info' under CCA, the court hearing is Thursday, so it still possible that I will get a bunch of paperwork between now and then (which will be exactly 12+2 days).

 

I assume that, as my defence submitted is based on them not having produced all documentation, that if they do deliver these documents, that I can ask for adjournment.

I will still argue that the account is still in dispute, on the basis of the amount owing.... which will probably include penalty charges.

Each of the two SD's issued had £150 added for the personal delivery, done at the sme time, by the same person.

 

Anyway, if anyone has any more advice, my set aside hearing is on Thursday......

 

thanks

Beanpole.

[42man]

If for some reason they produce the documentation, then if it was me in your position, I would request an adjournment as you want the documentation to be verified for compliance.

[Shawn0109]

Hi beanpole, thankyou for reading my thread, as being in the same kind of situation as you, I wish you the very best of luck for your hearing on Thursday, I hope you get the result needed to get this thing Set Aside, yeah keep me updated on any new information or result you get out of this, all the best.

[citizenB]

just subscribing.

[beanpole]

many thanks for posting....yes I will ask for adjnmt if they do produce doc's....and will update everyone after Thursday.

 

again, thanks to the contributors and for this forum !!!

 

Beanpole....

[miss muppet]

Goodluck Beanpole, if you read my thread, you'll know our experience wasen't good. Make sure with the court person when you swear in that they will be sending your defence affadavit to the other side as our Judge hadn't got a copy of daughter's sworn affadavit and therefore adjourned pending us sending a copy of the affadavit to the dark side. Make sure you write yourself a script!

[beanpole]

Hi there all,

Miss Muppet, sorry to hear your experience wasn't that good.

Yes, my original affidavit with set aside application was sent by the court to the other side.

Separately, when I submitted my full defence against the SD to the court last week, I asked and was told to send a copy myself to the other side...which I did, Special Delivery and hence signed for.

As of today (Mon, hearing on Thurs), still no documents from 'them' since my CCA request....

 

Hopefully nothing will show up before Thurs.

 

Ill keep you all posted.

Beanpole.

[beanpole]

Very Urgent Help please !

I have had a response.

Letter received from LARGO, submitting to Court a witness statement, opposing my application to set aside the SD.

They acknowledge my CCA request for documents but argue that as it is still within a month of receipt of request, that they are not in breach of s78 CCA 1974. There is no mention of the 12 day deadline.

Furthermore, they argue that because my request for documents was after serving the SD, that they are not enforcing agreements, whilst in default of s78 (but in opposing the set aside, are maintaining the ability to do so).

They have submitted evidence, which is downloaded from threads on this site, arguing that I have mistakenly used a skeleton defence for trial and that there is little relevance.

The submission to the court, argues that my application does not bring forth any triable issues.

To date, they have not produced any original Credit agreement, default notice etc, although reference is made via other correspondence.

 

Any urgent advice on what do now please.

[citizenB]

Someone else on another thread has posted that a Creditor is trying to get the defence thrown out because it has been taken from a "website" and has no chance of triable issues.. I fail to see it is the business of any one.. DCA, Creditor or the Pope where you get your defence/assistance from.

 

You have supplied as far as I can see an embarrassed defence purely due to the fact that you have NOT been supplied with documents you need to build a proper defence.

 

I think you need help from one of the more legally astute CAG peeps.

 

All I can suggest you do is wait awhile and see if someone with more knowledge looks in say in a few hours.. hit the red triangle over on the left under your avatar and ask for assistance from a mod/site helper

Edited July 15, 2008 by citizenB

[beanpole]

Thanks for responding to this Citizen.

Will do.

Beanpole

[ukaviator]

Hi Beanpole

 

So no CCA at all, they have defaulted after the 12 + 2 days, not looking good for their case.

 

You could apply for a stay pending their production of the CCA, and leave to amend your defence if and when they do produce it.

 

or

 

Para 7.3 of CPR practice direction 16 requires that, if an action is based on a written agreement (which this is), then a copy of the agreement should be attached to the POC and the original produced in court. Without the agreement (or at least something complying with s127(3) of the CCA 1974) they have not demonstrated sufficient cause of action. On that basis you could also ask for their statement of case to be struck out under CPR part 3.4(2)(a).

 

The Civil Evidence Act 1995 is one of the most important acts in the UK.

 

Section 8 states:

 

(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved:

 

by the production of the original

 

whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such a manner as the court may approve.

 

(2) It is immaterial for this purpose how many removes there are between a copy and its original.

 

A company presenting documents that have not been altered since its creation or has a clear audit trail that shows any and all changes since its creation holds a greater ‘weight’ than a document that cannot show these procedures.

 

Section 9 states:

 

(1) A document that is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without any further proof.

 

(2) A document should be taken to form part of the records of a business or public authority if there is produced to a court a certificate to that effect signed either by an officer of the business or authority to which the records belong.

 

The law can be interpreted to show that an original document is not the only admissible evidence in a civil court. Electronic copies of documents are acceptable so long as their integrity can be shown.

 

Key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

All the payment records (and other documents making up the file - including the Agreement/Application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years.

The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states :

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

If they turn up in court with no paperwork, no agreement, then they will have a wasted trip. So you could go for the strike out using these above.

[beanpole]

Many thanks for this quick reply and full content.

I will take all of this onboard.

 

There are only copies of other correspondence attached to the witness statement, referring to the the key documents that they are purporting to, no original agreement or default notices...they are waiting on them.

 

I am sending a reply letter now to point out that they are in default under the 12 day rule (quoting the specific sections of CCA), such that the alleged agreement cannot be enforced (and of course the 30 day rule). Their argument that there has been no breach of s78 CCA is refuted.

I will re-iterate again all that they need to produce...and if any doc's are brought along to court, I would ask for an adjournment to examine.

 

Thanks again.

[ukaviator]

Ok, also mention the law above also, but please check the sections first for yourself, as you may need to refer to them in court.

[beanpole]

Ok will do thank you.

Given this stage is my application for set aside against an SD, rather than them taking me to court for payment (no CCJ application ever taken place), there haven't yet been any Particulars of Claim...just the SD and now their defence against the set aside...is the citing of this bit of CPR relevant at this point ?

 

thanks again

[citizenB]

Thanks for responding to this Citizen.

Will do.

Beanpole

 

 

You are very welcome. You have some help from someone with much more experience and knowledge now so you should be ok.