please can you help, ive received a letter i dont understand

[elliej1981]

hi, please can someone help, i attended court a month ago to have a stautory demand set aside, the case was ajourned as i was waiting for SAR and CCA. CCA still hasnt arrived and last week i sent a CCA non compliance letter (i requested CCA on May 27th) today i have received a letter from Largo, and im not too sure what to make of it. It acknowledges receipt of the letter, and says that theyre aware that i havent received CCA's and upon receipt of them from HSBC they will forward them to me, the next paragraph says:

 

"However, at this time, our client is not attmepting to enforce the agreements merely maintaining it's position and right to do so further to your application to set aside our clients statutory demands.

 

We look forward to resolving this matter in due course."

 

Im really confused, i thought that the statutory demand was the initiation of bankruptcy proceedings, and surely this indicated that they are trying to enforce the agreement? Or are they saying that it was purely a threat and they had no intention of following through? Im really confused. I've filed my defence with the court based on non production of CCA, statement of account etc. But could i just use this letter as proof that the company have no intention of following through? Or have i completely misread the letter? Please can someone help / give me their point of view.

Thankyou

[sillygirl1]

It wouldn't be Bryan Carter, it sounds like their sort of trick. Send the letter to the court and ask them to put it in front of the judge - seems like they are trying to get you to back down from defending the case.

 

Any correspondence from the other side should be copied to the court - half the time they don't bother and try to confuse you.

 

Somebody else wil be along soon with more experience.

[elliej1981]

thankyou, its really confused me!! I've got no idea at all how to take it, from the previous correspondence i've received from them this has been the least agressive, which has unneverved me. It's from Largo, they've not been a particuarly plesant company to deal with.

 

I was hoping that they'd drop the statutory deman, i guess that wont happen

[Docman]

I think more banks are using the SD/bankruptcy route to get around the fact that they don't have a valid CCA. People get even more worried by the word 'bankruptcy' that by any othre threat. In most cases (I'd say over 90% if you exclude the tax man and local councils who mean it) creditors are just threatening.

 

IMHO this is because they have to put real cash in court if they wish to proceed bt can issue a Statutory Demand at no cost. From a defendant's point of view, an SD is something that should never be ignored but instead dealt with quickly.

[elliej1981]

Do you think that the letter acknowledges the fact that they're not interested in bankruptcy? I was worried that the letter had a completely different meaning that i just wasnt understanding?

 

Surely the court wouldn't be very happy with this letter, as it's just wasting their time?

[Docman]

Taking the first stage in bankuptcy proceedings would be viewed by the court as a serious step. it should only be used where a creditor cannot easily enforce its claims. However, in most credit cases, the creditor can more easily bring a claim online - if it has the documents to back up its claim.

 

When was your application to set aside adjourned to?

[elliej1981]

its this monday

[elliej1981]

sorry to be a pain, do you think i've interpruted the letter correctly? im going to send a copy to court today, and was going to enclose a letter saying that i feel this confirms that Largo have no intention of pursuing bankruptcy and are therefore wasting mine and the courts time... not sure if that would be appropriate or not?

[Docman]

I think it would be appropriate but if you post the letter, it might not get in front of the judge by Monday. I suggest you take the letter with you and make your point verbally directly to the judge. If you think you might get flustered, write down what you would have said in the letter and read it to the judge.

[elliej1981]

thankyou so much for your help, i'll take the letter along, and write a list of bullet points so that i remember everything i've got to say. Im relly hoping that Largo dont send along a representative again. I've got no idea how to address the judge etc, so having someone there who was addressing the judge as "your honour" did throw me a bit. Again thankyou and i'll let you know how it goes.

[Docman]

Don't worry about going to court.

 

The hearing will be in an office with you and the other side's solicitor on opposite sides of the table. The judge will be at the head of the table, between both sides. Every one is in ordinary clothes - no fancy robes or wigs. You should call the judge 'Sir' or M'am as the case requires.

 

The judge will ask the person who is the applicant to speak first. As this is your application, that should be you. Just explain things in your own words very calmly. The other side will then get their say. Whatever you do, don't interrupt them unless the judge asks you a question. Instead, make a note of any points you know are wrong. When they have finished, the judge should ask you for any comments, which is your chance to hit back. If the judge doesn't ask you to speak again, politely interupt and put your points. As a litigant in person, the judge should give you a little leeway.

 

When its over, just accept the judge's decision. Don't argue with the judge if it doesn't go in your favour. Just come back and tell us all how it went.

 

Best of luck.

[elliej1981]

i cant thankyou enough for all the info. will be so much happier when mondays out of the way. Been up since 4.30 this morning worrying about it. At least i've managed to sort out a baby sitter for Monday which is a huge relief. Thankyou again

[elliej1981]

the case has been adjourned for another two weeks. It was horibble. The judge was very condesending and told me that the lack of cca and statement was not an adequate defence, and that it was a consumer issue and not a reasonable defence. I said that we were unable to acknowledge the debt, the judge said the fact that we were paying showed that we had acknowledged the debt "you wouldnt pay for a debt that wasnt yours" it has been adjourned for two weeks for largo to provide a statement as the cca "isn't relevant" Largos representative spoke to us before court and was throwing around legal terms that we didnt understand and also said that the request to set aside was out of date and he was therefore going to proceed with bankruptcy petition. He said that the papers were served on 28/05 but the court hearing wasnt until 30/06 and no extension had been made. But we completed and returned the papers to the court on 02/06. I suppose it could have been worse but it does sound like they wont accept the lack of cca as a defence and next time the statutory demand will be granted

[Docman]

OK, looks like you got a duffer of a judge. He is wrong. A valid defence in law will defeat a SD. Let's see what you have but it is a bit late now for me.

 

I'll post again in the morning. Don't worry help is here.

[elliej1981]

thanyou. the judge didnt even bother to read my defence as he said that it wasnt appropriate to the case. Whilst i was making my statement the judge and the solicitor were giving looks to each other and rolling their eyes. To finish it all off when i left the solicitor the talked to us again repeating that the lack of cca and statement wasnt a defence as obvisoult HSBC wouldnt give out money to people without having the correct paper work in place. When i got out of the courts i realised i'd left my handbag in there, so had to go back in and wait for the case that was in there to finish before i could get it. It was a nightmare from start to end!

[Docman]

Hi elliej

Looks like you drew the short straw with the judge. His behaviour is disgraceful but I'll deal with that at the end. Let's deal with your case first.

I've read a couple of other threads you have posted on to get a flavour of your problem. Can I explain where I think some confusion has arisen. Many of the other threads make a reference to lodging a defence. That is because a creditor bank or DCA] has brought a claim in the county court by issuing a 'N1' claim form.

In your case, the DCA [Largo] has issued a statutory demand as a first step in bankruptcy proceedings. In doing so, they are trying to side step the normal civil recovery route by using a process that is frankly intended to deal with business debts where there is often no written agreement, just a simple verbal contract. Consumer debts, such as credit cards, are regulated and must be in writing. Without an agreement, the claim cannot be enforced.

In your case, you have to apply to have the SD set aside. You are defending, and therefore there is no 'defence' to file. Instead, you have to make an application on Insolvency Form 6.4 and back that application up with an Affidavit (Form 6.5). Can I assume you made an application on Form 6.4? If so, did you file an affidavit (form 6.5) and more importantly, can you post a copy after taking out any personal details? If you haven't a copy, can you type out what you put into the affidavit at section 2? It's the bit that starts “That I ( c).... and then you pick one of the sections at the side. We will try to amend if needed and you may have to send it again to the court.

Now, let's deal with the judge. You can't complain about his legal decision [judgement] as such - that's an appeal, (and in any case, he hasn't actually made a decision, just adjourned), but you can complain about his conduct. Unfortunately, sometimes you get a 'Deputy' District Judge trying the case. These are often retired local solicitors, many of whom last studied law before the Consumer Credit Act 1974 was even passed! To be fair to them, they do have a vast area of legislation to deal with in a county court and try to get rid of cases as quickly as possible by suggesting 'solutions' like the one you had. However, no amount of workload excuses any judge from showing bias in a case, such as 'rolling eyes upwards' in unison with one side’s solicitors.

I suggest you call the court today or tomorrow and ask for the name of the judge who heard your case. It will be on the Order anyway, so there should be no reason why the court staff can't tell you. Then ask for the name of the senior or circuit judge i.e. your judge's immediate boss.

You can write to a government body, the Office for Judicial Complaints (www.judicialcomplaints.gov.uk) but it can take 12 months to resolve. Far better IMHO is to write to the senior judge at the county court and complain about your judge’s behaviour. Most likely outcome is that you end up with a different judge next time - one who will have read the papers, so make sure you know yours.

[elliej1981]

thankyou so much for your help docman, i will type out what i wrote on the affadavit and post it.

[42man]

Ellie where abouts do you live ? (local court ?)....I might be able to attend with you...

[42man]

An affadavit will look like this....you need to get it signed either at the court (free) or at a solicitor's office (usual cost £5)

 

AFFIDAVIT

I (name) of (address), (occupation)

MAKE OATH and say as follows:

____________________________________

Signature

SWORN AT (address)

this day of year

before me,

____________________________________

(A Solicitor or Commissioner for Oaths)

[42man]

Do you have all the relevant case law for the CCA rules...

 

If you want further ammo print this letter off...post #9 on this thread

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/133653-consumer-credit-agreements-letter.html?highlight=gareth

[elliej1981]

Hiya, i live in Plymouth, Devon

 

thankyou for the details CCA rules. I shall print that off and have a proper look through.

 

On the affadavit i wrote the following (which im sure i got from this forum somewhere!)

 

I do not admit the debt to Legal & Receiveables ltd agents because i have not been provided with a true copy of any signed and properly executed agreements between legal and receivables ltd agents and myself.

 

I have informed legal and receivables ltd on 27/05/2008 by letter that unless they can provide me with true copies of any agreements they refer to then i consdier their claim to be in dispute, no response has been forthcoming to date.

 

I have set HSBC a subject access request in an attempt to clarify my position. however under statue HSBC have 40 days in which to respond. In view of the above i respectfully request the court to set aside the statutory demand or in the alternative make an interim order pending the requested information

 

Again thankyou all so much for your help, i dont know what i'd do without it.

[elliej1981]

have i written the completely wrong this on the affadavit? After court i have been left completely confused! I still havent received a statement of account (which according to the judge is all i need)

[Docman]

It may not be the best legal jargon but its intent is clear enough. The judge should have known enough law to know what you were on about although I think you have confused two types of legal requests slightly.

 

I'll have a look at the Insolvency forms and some text as soon as I can.

[Docman]

I suggest you might like to use the following

 

At part 2 (c ) you insert

 

"do not admit the debt because the creditor has not provided any evidence of his claim as required by the Consumer Credit Act and is prevented from enforcing any claim until he does by the provisions of that Act.

And further that the creditor is bringing a claim under the Insolvency Act 1986 in order to circumvent the lawful prohibitions placed upon him by the Consumer Credit Act 1974 ."

You may have to write in bold caps 'AMENDED' on the top of the insolvency form to apply for set aside.

The following text is your argument. I'm not sure whether they can be inserted as part of the application form.[Form 6.5], in other words placed below the text above or alternativley put into an affidavit, much as in the format that 42man suggested.I suggest you have a word with the court staff to see what is best. As a last resort, you could prepare one draft applicatioin that includes the following text and a second application without this text but with a separate affidavit. Whatever happens, you will have to act quickly, possibly taking the forms to court.

Te suggested text is

"The claim is in relation to a credit agreement that is regulated by the Consumer Credit Act 1974.

.

On xx May 2008, I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974.

The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter and proof of delivery attached marked Exhibit X & X

 

For clarity, section 78(1) of the Consumer Credit Act 1974 states

78. Duty to give information to debtor under running-account credit agreement.-

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

 

(a)the state of the account, and

 

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

(a) he is not entitled, while the default continues, to enforce the agreement;

It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the claimant supplies the documents referred to above.

[42man]

You might also like to add this if the judge believes that the newer regulations do apply....(which they do but only to post April 2007 ?agreements)

 

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