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

[steven4064]

As the others have said, if they have not produced a copy of the agreement they have no case. Paragraph 7.3 of Practice Direction 16 of the Civil Procedure rules says that they must attach a copy of the agreement to the claim and produce the original in court.

 

You could actually apply for their statement of case to be struck out under CPR Part 3.4(2)(a) on the basis that "that the statement of case discloses no reasonable grounds for bringing or defending the claim" as they have not produced a copy of the agreement as required by practice direction 16.

 

You could then say, "in the alternative that the court is not minded to strike out the claimant's statement of case..." and ask for a stay as suggested above.

[beanpole]

Thanks for postings....I will read up on CPR and prepare as suggested.

 

Beanpole

[steven4064]

CPR - Parts and Practice Directions

[Shawn0109]

Good luck for your set aside hearing tomorrow beanpole I'll be praying for you for a succsessful outcome so you can put this all behind you, let me know how you get on with it all, and any advise you might be able to give me as I'm in the same situation as yourself I would be really greatful, all the best.

[citizenB]

Good luck for tomorrow beanpole.

[Shawn0109]

Beanpole how did it go today or havent you had your hearing yet?

[beanpole]

Thanks to all for the kind thoughts...

 

 

hmmm...hearing was adjourned, so just have to wait for new date to be set now....solicitor did show on their side tho'.

 

Ill be watching to see how you all get on.

[42man]

Message received and understood Bean !!!

[beanpole]

Hello all,

update below.

Any comments would be very welcomed to help in my next steps.

 

The hearing for my set aside application is now October.

Despite repeated requests for credit agreement and all other essential documents, both the 12 and 30 day deadlines have now passed.

So the other side are now in default and the alleged debts should now be unenforceable !

 

I have told the other side that they should withdraw.

I have had nothing back, except copy of the court date....so it seems they still intend to proceed.

 

I also sent S.A.R - (Subject Access Request) to original creditor; lots of data but no copy of credit agreement here either, so have asked again to confirm that none exists.

 

I'll prepare skeleton argument to help at the hearing.

Please post any thoughts.

 

Thanks

[beanpole]

Urgent help required please

 

Hi all,

latest is that I have been sent a 'copy' of credit agreement, which I have posted to.. Beanpole_09/CCA - Photobucket - Video and Image Hosting

(blanked out personal details and dates), so would appreciate anyone having a look and making comments.

This has all happened after the 12 and 30 day deadlines passed, so am I right that it can still only be enforced in a court ?

It looks like a faxed copy, rather than original, so I will still be asking for true copy to be produced.

No proven assignment, nor default notice yet provided.

 

Urgent advice please.

thanks

[42man]

I can't read it at all....but my initial thought is that it may well be enforceable this may help you...

 

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.

They need to keep documents such as a copy of the agreement for 6 years after the closure of the account to comply with money laundering legislation.

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 agreemens executed before that date.

 

....and bad news as it may seem, the 12+2+30 days is no longer an offence, and even though they did default by not providing it then they can enforce it now....

 

My thoughts are this....

 

You could kindly request that the judge looks at the process as it has been delivered by second class and this could be classed as an abuse of process.

 

It is good to see that you have requested a SAR from the original creditor (you can say this to the judge too and also tell him exactly what has been sent, tell him they have not sent you a CCA, copies of any defaults, notices of assignment)...as you could also say that the one Largo have provided is a 'fake' / 'forgery' and you would request that the judge order the ORIGINAL to be produced.

 

My feeling is that you should request the judge for full disclosure, copies of notices of assignment, statements and default notices, and until then it is adjourned.

 

The agreement is they key here, as statements alone can be forged very easily (I had a photoshopped copy of some statements ready with me with the opposing solicitors name on it just in case (not to commit fraud) but to demonstrate that if I could copy them, anybody could....

 

Also try and gen up on the case law a bit....

 

FOR THE AGREEMENT

 

 

REFERENCE TO CASE LAW

• As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:
  ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’
  

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

FOR THE DEFAULT NOTICE

 

 

DEFAULT NOTICE

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

THE IMPORTANCE OF THE NOTICES OF ASSIGNMENT

The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

If at this stage they say they are not the original creditor and do not have to provide it....ask the judge if it is a partial assignment or a full assignment....

 

If partial, then request that you would want to bring the original creditor....If a full assignment then (see below) the rights and duties they must comply with...

Rights and Duties

CCA74 s189(1)

“ creditor “ means the person providing credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement, includes the prospective creditor;

If you admit to the judge that you do owe them the money, you may have an awful judge who will say ok you spent it pay them back.....

Or you may have a decent judge who may take your side....whatever happens you have to dispute the debt....otherwise the judge can't set it aside....

[42man]

This may help as well...with regard to having/not having the prescribed terms...

 

the case of Wilson and another v Hurstanger Ltd also confirmed that the prescribed terms must be within the agreement document

 

"33 In my judgment 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. Those minimum provisions combined with the requirement under s 61 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 in the slightest mis-stated.

As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and

the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

[smt37]

Subscribing

[42man]

Beanpole.....stick to your guns.....

 

They are using the Insolvency Service as a means of debt collection...which is an abuse of the Insolvency Service ESPECIALLY as the debt is disputed, (what makes your case and the fact that are NOT withdrawing the action - and they have not notified you of this either)they are in DEFAULT of the 12+2 days. (which is in pillars of stone in the Consumer Credit Act 1974) Tell the judge that you are totally disputing the debt and they KNOW this !!

 

Quote what Justic Warren has said - In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

 

And ASK FOR YOUR COSTS !!

[42man]

It makes no difference at all, how / where your defence came from....and is completely irrelevant.

 

State to the judge that there are no statements, default notices, notices of assignment, no letter before action....and it is not uncommon for debts to made up entirely of charges.....

[beanpole]

Well, just to let you all know - both my set asides were successful - yeah !

Thanks for all your support.

Fundamentally, without a clearly enforceable agreement that was proven against the alleged debts....the judge, (begrudgingly) had to follow s78/s87-88 of the Act. I think that as litigant in person with a senior partner as opposing solicitor (gulp), we did ok in the end.....not that the judge was happy to help...far from it !

The poor solicitor was told it would only be 10minute hearing, with very little prep, little valid documentation...felt sorry for him in the end; it was nearer 2 hours !

...and yes 42man costs awarded too...

gonna go and crash now.....absolutely exhausted.

thanks again everyone.....be back to help others later.

[42man]

MORE WONDERFUL NEWS !!! Well done Bean !!!

[Vampyra]

WELL DONE!

 

The day gets better and better

:D

[citizenB]

Well done beanpole.

[B3rty]

Another one bites the dust...getting better..

[saintly_1]

Thread moved to successes

[slick132]

Well done BP and congratulations on your great result.

 

Costs too !!

[Having_A_Knightmare]

Another fantastic result!!!!!

 

Well done

 

HAK

[miss muppet]

So happy to hear the news Beanpole, even better as you had to cope with the dark side appearing in person.

[Dibsthefrenchie]

Beanpole,

I am about to borrow your defence and felt that the least I could do, is to say "thank you"!

Dibs