Jump to content

 

BankFodder BankFodder


Dwayne Dibbley

Capquest and old Egg Banking CCJ from 2007

style="text-align:center;"> Please note that this topic has not had any new posts for the last 2037 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

No OFT are regulators -they do not draft the regulations which come via the Secretaryy of State and Parliament.

 

a) In advertising the APR can be shown 0.1% below or 1% above the calculated APR - the correct APR. This is the 'extended' APR and must be designated %APR . So in adverts if the APR is calculated as 15% it is permissable to use APR 15% but %APR 14.9 or %APR 16 if an advertiser so wishes. (why would he though?). The OFT documents make no mention of %APR.

 

b)In agreements however the APR must be shown correctly if it has to be shown. Schedule 1 Of 1983 Regs say that the APR must be shown in all types of agreements. However Schedule 7 1A says

 

For the purposes of these Regulations, it shall be sufficient compliance with the requirement to show the APR if there is

included in the document--

(1) a rate which exceed the APR by not more than one; or

(2) a rate which falls short of the APR by not more than 0.1;

 

so the APR does not have to be shown if one either (1) or (2) are true. The other rate cannot be the APR . These tolerances do not affect the value of the APR but whether or not it has to be shown.

 

OFT have got it wrong again.

 

Pelham9, could I ask you to have a look at this for me?

Boggly Egg Interest rate calculation - The Consumer Forums

Share this post


Link to post
Share on other sites

Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

Share this post


Link to post
Share on other sites

Hi, had no response from Capquest by post although i know they tried to ring every frigging day, but i ignore there call. Today 19th December i have now received there H L Legal letter stating All arrears must be paid ( £ 480 ) by the 25th December else legal proceedings will incure, shall i SAR capquest now as well?

 

Thanks

 

Ho Ho Ho

Share this post


Link to post
Share on other sites

Another letter this morning from the MD of capquest lol.

 

Stating if i agree to pay 43.20 per month, starting 28 Feb 09. All interest thats been added ( currently 520.06 ) will be removed ( whoopee doo ) leaving a balance of 2557.06. Then for each payment i make of 43.20 they will credit my account with another 12.96 ( 30% ) ? saving me 1287.18.

 

Does this sound worth doing?

 

Thanks

Share this post


Link to post
Share on other sites

Hi i had a CCJ from Egg Plc back in 2007, of which this was settled with the last payment on the 14th May 2007. I have the cas Number from Northampton CCBC but i havent a clue as to what the debt was for.

 

Would i be able to ask the county court for a copy of the case? or will i have to contact egg?

 

only reason is it is still showing on my credit report, and i will get a certificat of satifaction for this later. but i also have two egg defaults. and i am curious to find out if they are different to the ccj one or the same.

 

thanks

 

Nigel

Share this post


Link to post
Share on other sites

You could try ringing the court DD or possibly writing to them, they might charge a nominal fee for copying..


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites

Hi,

 

I have an Amex account that is with Stevensdrake and a CCJ was issued for the total of £2950 payable in installments of £200 per month back in July 2008.

 

I have been paying £200 each month without problems as requested by the court.

 

Today (20th April) i have received a letter from Stevensdrake stating:

 

You will be aware that the agreed repayment plan is due for review.

 

A fresh repaymnt plan will now have to be agreed.

 

To this end, we enclose a Statement of means form which please complete and return , even if your circumstances have not changed.

 

We also enclose a Statement of account for your records.

 

---------------------------------------------------------

 

When reviewing the statement they have sent they still have a total of 5388.66 debit and not the 2950 agreed with he court.

 

To date i have paid £1600 leaving according to them a balance of 3788.66 which should be 2950 less 1600 = 1350 outstanding.

 

Could someone point us to what stinky letter i should send to Stevensnakes.

 

ie if CCJ balance agreed 2950 then should the balance be 2950, else by there figures after i have payed the CCJ i will still own them 2500???

 

also if the CCJ agreed to a payment of £200 then that is fixed or am i wrong?

 

i was hoping that in 6 months i would have paid this all off?

 

Many Thanks

 

Nigel

 

PS if you require scans of there letters / CCJ i will post them up

Share this post


Link to post
Share on other sites

They are trying it on, a CCJ is only reviewed by a judge....tell them to go and swivel. ;)

 

if CCJ balance agreed was £2950 that is what you pay, not a penny more.


Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

Share this post


Link to post
Share on other sites

You should make a complaint to the OFT & the FSA about these muppets.


Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

Share this post


Link to post
Share on other sites

There can be interest added on but it would say so on the CCJ. As for the review tell them your income has gone down so you can only pay a £1 a month, that'll stump em.

Share this post


Link to post
Share on other sites

Hi, received another letter from them this morning stating :

 

We note we have not received a response to our previous letter informing you that your instalment plan is now due for review.

 

Please complete and return the Statement of means form sent with our previous letter, even is your circumstances have not changed.

 

If you choose not to comply with our request for a review, we shall treat the instalment plan as having been rescinded by you for failing to review the amount of your payments upon request and take appropriate legal proceedings.

 

We must hear from you within 7 days.

 

Could some legal eagle give a letter to reply to them telling them polity where to go?

 

Thanks

 

Nigel

Share this post


Link to post
Share on other sites

They cannot lawfully 'reveiw' a CCJ. Report them to TS and the OFT. If you're having problems meeting those payments YOU can apply for a variation order but that has to means tested and you would pay a £35 fee.

 

Does the original CCJ say that interest is allowed to accrue on the account?


"To love unconditionally is the greatest gift, laughter is a close second" .To give your time to help others after being helped here is the best way to show your appreciation to your fellow CAG members.

 

Please note that this advice is given informally, without liability and without prejudice. Seek the advice of an insured qualified professional if you have any doubts. All my knowledge has been gained here, for which I'm very grateful. I'm a Journalist, not a law professional.

 

If you do PM, make sure to include a link to your thread as I don't give out advice in private ;)

BB 13 - DCAs/banks and solicitors 0.

 

I get a fresh start to get on with learning to live with severe disabilities when they could have had something if they'd been understanding...

 

<--- If you feel I've helped, please twinkle my star :)

Share this post


Link to post
Share on other sites

These wassocks are completely out of order here, they do not have any legal authority to vary a court order so as advised complain to the OFT and the FSA.

 

You do not need to reply to the cretins, why waste a stamp, besides what can they do about it other than throw their toys out of their pram.


Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

Share this post


Link to post
Share on other sites

Thanks,

 

on the Judgment it says:

 

To the Defendant

The claimant has objected to the rate of payment you offered ( i offered £100 pm )

The court has therefore decieded the rate at which you should pay. You must pay the claimant £2740.00 for debt ( andinterest to date of judgment ) and £210 for costs

 

You must pay the claimant a total of 2950.00

by instalments of 200.00 per month

first payment to reach the claiment by 28 August 2008.

 

I have no problems paying the current £200 as originally agreed.

 

NIgel

 

PS the interest would therfore be nearly £3000 as its at 42%

Share this post


Link to post
Share on other sites

Send a copy of that order to Stevensdrake along with this message from Father Jack;

308i8p5.jpg


Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

Share this post


Link to post
Share on other sites

lmao cerberusalert :)

 

I will ignore and await their next letter

 

Thanks

 

Nigel

Share this post


Link to post
Share on other sites

Hi, i have received a SD from capquest today by post ( no post mark on envelope, kept envelope )

 

i had sent capquest a CCA request late last year and received the following:

 

letter: http://x-centric.net/scan1.jpg

cca part1: http://x-centric.net/cca1.jpg

cca part2: http://x-centric.net/cca2.jpg

 

is this CCA valid?

 

here's the latest letter and SD:

 

letter: http://x-centric.net/letter2.jpg

sd part1: http://x-centric.net/sd1.jpg

sd part2: http://x-centric.net/sd2.jpg

sd part3: http://x-centric.net/sd3.jpg

 

can i request subject access from them ?

 

and how do i set this aside if required.

 

Many Thanks again

Edited by Dwayne Dibbley

Share this post


Link to post
Share on other sites

Hi a couple of quick questions

 

Do you own your house? and do you own a car worth more than £3000?

Share this post


Link to post
Share on other sites

please read this by the outstanding x20

 

 

 

THE STATUTORY DEMAND AND SERVICE BY POST

 

Introduction

The code relating to Statutory Demands (SDs) comprises [1] The Insolvency Act 1986 (IA) and The Insolvency Rules 1986 (IR).

 

A creditor may petition the court for a bankruptcy order against a debtor where he demonstrates the debtor is unable to pay his debts.

One such way of demonstrating inability to pay is set out in section 268 of the IA.

 

Section 268 says:

268. Definition of “inability to pay”, etc.; the statutory demand.

(1) For the purposes of section 267(2)©, the debtor appears to be unable to pay a debt if, but only if, the debt is payable immediately and either

(a) the petitioning creditor to whom the debt is owed has served on the debtor a demand (known as “the statutory demand”)

in the prescribed form requiring him to pay the debt or to secure or compound for it to the satisfaction of the creditor,

at least 3 weeks have elapsed since the demand was served and the demand has been neither complied with nor set aside in accordance with the rules, or

(b) execution or other process issued in respect of the debt on a judgment or order of any court in favour of the petitioning creditor,

or one or more of the petitioning creditors to whom the debt is owed, has been returned unsatisfied in whole or in part.

 

In all cases, the debt due must be a debt which is for a sum equal to or exceeding the bankruptcy level. Currently that level is £750.00.

 

There are three types of SDs for service on individuals. They are:

[1] SD for debt payable immediately but not under a judgment of the court

[2] SD for debt payable immediately under a judgment of the court

[3] SD for debt payable in the future

 

This article is concerned with the postal service of type [1] SDs and considerations regarding applications to have .them set aside.

 

Practice and Procedure: Rules for the Service of Statutory Demands

Here's a very important rule. It’s IR 6.3(2). It applies to the service of all SDs but is commonly disregarded by debt collectors who use the insolvency regime

as a means of collecting debts with no genuine intention of proceeding to bankruptcy.

 

Rule 6.3 Requirements as to service

(2) The creditor is, by virtue of the Rules, under an obligation to do all that is reasonable for the purpose of bringing the statutory demand to the debtor's attention

and, if practicable in the particular circumstances, to cause personal service of the demand to be effected.

 

In short, the creditor is bound by obligation imposed by the rule, to do all that is reasonably practicable to cause personal service of the SD.

To avoid the obligation the creditor is bound to demonstrate that it proved impractical to effect personal service.

To achieve avoidance of the obligation he will be expected to attempt personal service, fail in that attempt

and proceed to serve by some other way which he believes will cause the SD to come to the debtor's attention.

 

A debtor will invariably know the creditor wishes to attempt personal service because the creditor will tell him.

Where a creditor has attempted but failed, the proper course is for the creditor to seek to make an appointment to meet the debtor.

This is usually done by attending to serve personally, failing and pushing a letter through the letter box referring

to the visit and leaving contact details by which the appointment may be fixed between the debtor and the person attempting to serve the SD.

 

The creditor has four months within which to serve the SD. Service after this time will require the creditor to explain himself and account for any dilatory conduct.

If the method for service described above does not lead to personal service, then (and only then) service may be made by other means such as first class post

or insertion through a letter box (Practice Direction, 18 December 1986, [1987] 1 All ER 604). For this to be acceptable to the court,

the creditor must have taken similar steps to those which would persuade the court to grant an order for substituted service of a petition

[see: Re A Debtor (Nos 234 & 236 of 1991) The Independent 29 June 1992]

(in which it was confirmed by Blackett Ord QC that in some cases it may be appropriate to serve the statutory demand upon the Solicitors of the debtor).

 

Sometimes SDs may come through the post to be signed for.

The debtor's signature on the receipt retained by the postman may be sufficient evidence of an acknowledgement of receipt

whereby postal service in this way proved a reasonably practical way of effecting service. The risk from the creditor's point of view is that the acknowledgement

may be signed by someone other than the debtor.

 

Absent an order for substituted service, if the SD comes by ordinary post, service can not be said to have corresponded with the obligation imposed by IR 6.3.

Where purported service is effected in this way, the debtor should avoid writing to the creditor in a way which demonstrates receipt of the SD.

He may if he cares, send a request for production of the agreement upon which the debt is based and/or a statement of account,

but he would be very ill-advised to acknowledge receipt of a SD delivered in the ordinary course of post.

 

The reasoning against acknowledging receipt of a SD delivered in a way which would, apart from the debtor's acknowledgement of it,

be incapable of demonstrating compliance with the IR 6.3(2) obligation is found in IR 6.11 which concerns the evidence the creditor must file at court proving service of the SD

as a condition of his being allowed to present his petition.

 

Rule 6.11.Proof of service of statutory demand

(1) Where under section 268 the petition must have been preceded by a statutory demand, there must be filed in court, with the petition, an affidavit or affidavits proving service of the demand.

(2) Every affidavit must have exhibited to it a copy of the demand as served.

(3) Subject to the next paragraph, if the demand has been served personally on the debtor, the affidavit must be made by the person who effected that service.

(4) If service of the demand (however effected) has been acknowledged in writing either by the debtor himself,

or by some person stating himself in the acknowledgement to be authorised to accept service on the debtor's behalf,

the affidavit must be made either by the creditor or by a person acting on his behalf, and the acknowledgement of service must be exhibited to the affidavit.

(5) If neither paragraph (3) nor paragraph (4) applies, the affidavit or affidavits must be made by a person or persons

having direct personal knowledge of the means adopted for serving the statutory demand, and must

(a) give particulars of the steps which have been taken with a view to serving the demand

personally, and

(b) state the means whereby (those steps having been ineffective) it was sought to bring

the demand to the debtor's attention, and

© specify a date by which, to the best of the knowledge, information and belief of the

person making the affidavit, the demand will have come to the debtor's attention.

(6) The steps of which particulars are given for the purposes of paragraph (5)(a) must be such as would have sufficed to justify an order for substituted service of a petition.

(7) If the affidavit specifies a date for the purposes of compliance with paragraph (5)©, then unless the court otherwise orders,

that date is deemed for the purposes of the Rules to have been the date on which the statutory demand was served on the debtor.

( Where the creditor has taken advantage of Rule 6.3(3) (newspaper advertisement), the affidavit must be made either by the creditor himself

or by a person having direct personal knowledge of the circumstances; and there must be specified in the affidavit

(a) the means of the creditor's knowledge or (as the case may be) belief required for the

purposes of that Rule, and

(b) the date or dates on which, and the newspaper in which, the statutory demand was

advertised under that Rule;

and there shall be exhibited to the affidavit a copy of any advertisement of the statutory demand.

(9) The court may decline to file the petition if not satisfied that the creditor has discharged the obligation imposed on him by Rule 6.3(2)

 

Thus a creditor wishing to proceed with a petition based upon a SD served in the ordinary course of post, will, without the debtor's written acknowledgement of its receipt,

be incapable of satisfying the requirements of proof demanded by IR 6.11. By IR 6.11(9), the petition runs a serious risk of rejection at the filing stage.

In order to illustrate the extent of the obligation imposed, in Regional Collection Services Ltd v Heald [2000] BPIR 661

it was held that a creditor had not done all that was reasonable within IR 6.3(2) where despite having made several failed attempts to serve the debtor at his home,

he had failed to visit the debtor’s business premises.

 

What does this all mean?

The service rules are not something new to debt collectors. They know this rule well. The reality of the situation where a debt collector sends out a SD

in the post is that he has absolutely no intention of petitioning the court for bankruptcy.

He has no intention because [1] to present a petition involves his putting up serious money up front and into court

(currently, September 2008 - court fee on presentation: £190.00, deposit: £415.00, plus fees to process server and solicitor on the hearing of the petition, perhaps another £750.00ish),

and [2] if the petition succeeds, the debt collector ceases to have any further control over the collection of the debt.

 

On the contrary, the debt collector wishes to retain control of the debt's recovery as cheaply as possible.

His modus operandi is therefore to send out the scariest looking piece of paper imaginable in an envelope stuck to which is a second class stamp.

If the debt collector genuinely intended to pursue the debtor by bankruptcy, was committed to paying the fees and losing control once a bankruptcy order had been made,

he'd ensure he complied with the service rules from the outset and would not take any short cuts which would frustrate that genuine intention.

 

It is an abuse of the process of the court and harassment to send out a statutory demand by post with no intention of relying on it in bankruptcy proceedings.

This sort of practice once cost a creditor its Consumer Credit licence (Credit Default Register Limited, licence number 0154753 terminated 5 May 1993).

 

Besides complying with the service rules he is required in his SD to

[1] properly particularise the debt by giving details of when the debt was incurred, how it arose, the consideration for the debt and where interest is claimed, the calculation for interest;

[2] state the name of someone at the creditor's office and that person's contact details to whom enquiries should be addressed;

[3] state the court and court office address at which any application to set aside the SD should be delivered, and

[4] provide particulars of any assignment and the identity of all assignees.

Check for compliance with [1] to [4] above too. Any deficiencies are further clues as to the seriousness of the debt collector’s intentions.

 

What to do when a SD arrives on your doormat

[1] Keep the SD and the envelope it came in safe

[2] See what the SD says about a person to contact or a court to present an application to set aside the SD. If either one of these is incomplete, that is a further indication the SD is not serious

[3] Check the particulars of the debt and the identity of the creditor. What does it say? Is there a proper statement of facts showing how and why the debt is payable?

Does it give dates and any of the other required details?

[4] Ask yourself, do I owe this debt and if the creditor sued me for it, would I have any arguable legal defence to it?

To be able to answer this question you will need to know what the court regards as grounds to set aside the SD.

 

What would be grounds to set aside the SD?

 

Grounds to Set Aside a SD

An application to set aside must be made within 18 days of the receipt of the SD. That isn’t very long.

 

IR 6.5(4) says:

The court may grant the application (to set aside the SD) if

(a) the debtor appears to have a counterclaim, set-off or cross demand which equals or

exceeds the amount of the debt or debts specified in the statutory demand; or

(b) the debt is disputed on grounds which appear to the court to be substantial; or

© it appears that the creditor holds some security in respect of the debt claimed by the

demand, and either Rule 6.1(5) is not complied with in respect of it, or the court is satisfied that the value of the security equals or exceeds the full amount of the debt; or

(d) the court is satisfied, on other grounds, that the demand ought to be set aside.

 

This article would run for ever if every conceivable type of defence situation was discussed exhaustively.

I think it fair to presume that if the debtor believed the creditor owed him money that belief existed before the SD arrived, not immediately following.

I therefore propose to limit this part of this article to just a handful of those situations coming under IR 6.5(4)(b),

concentrating on common consumer debt situations. Common examples would be:

 

1 Dispute Examples

[1] Amount of debt disputed in terms of quantum

The amount of the debt may be disputed in terms of the account and debit or credit payments applied to it, the inclusion of penalty charges, interest and so forth.

May be you've paid the creditor more than he says you have.

May be he's charged your account with money he ought not to have. If an argument of this kind is raised,

it will be vital to demonstrate the issues reduce the amount of any admitted debt to below the bankruptcy level.

 

[Note: In a case where the SD was properly served (and therefore a little off topic for the purpose of this article)

and where the extent of dispute is insufficient to reduce the admitted debt to below the bankruptcy level it would be advisable to pay the creditor sufficient

to reduce the debt to beneath the bankruptcy level before the time allowed for the presentation of the petition since reduction

to a sum below the level once the petition has been filed at court does not disable the court from making a bankruptcy order. See Lilley v American Express (Europe) Ltd [2000] BPIR 70.]

 

[2] Amount of debt disputed in terms of right to enforce.

In just about all regulated consumer credit agreements and debt, situations which will give rise to the possibility of a SD where there is default will involve the creditor

or original creditor in having [a] served a default notice (DN), terminated the agreement and [c] demanded payment.

The requirement to serve a valid DN, owing to section 87(1) of The Consumer Credit Act 1974 (CCA 74), is a pre-requisite of the power to terminate and claim payment.

Check the DN to ensure it complies with the requirements of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

If the DN does not comply, the power to terminate and make demand for payment will also dis-apply.

A second situation would exist where during the currency of the agreement the creditor failed to comply with a request delivered to him pursuant to sections 77-79 of CCA 74.

The Act restrains a creditor from enforcing the agreement for so long as he shall neglect to comply with the request (more on which below under ‘Gathering the evidence’)

 

[3] Amount of debt disputed as statute barred.

A consumer debt ceases to be actionable once a continuous uninterrupted period of 6 years has elapsed since the date on which the debtor defaulted

under the agreement and during that period of six years, the debtor neither made payment in reduction of the debt nor acknowledged it in writing.

Further, once the period of six years has run out, the debt can not be revived.

 

The status of such debts where the period of six years as defined above has run out is that they are statute barred.

The statute is The Limitation Act 1980, the limitation is that cases must be brought before the six years have run out and the bar operates to prevent proceedings where the six years have run out.

 

2 Gathering the evidence

First a repeat of an earlier word of warning. In gathering evidence from the creditor or debt collector make sure nothing could be construed as an acknowledgment of receipt of the SD or of indebtedness.

 

Because the SD is simply a document in prescribed form delivered by the creditor, there is no involvement of the court or ‘court issue’.

The Civil Procedure Rules (CPR) do not apply to the demand (with the exception of certain of the CPR cost rules).

The rules which control the procedure are IR in which there is no provision corresponding to the CPR for disclosure of documents or Further Information.

I have seen it suggested that a means of obtaining evidence is to make a request for a copy of the agreement and statement of account under CCA 74 section 77(1) or 78(1),

claiming the added sting that if the request is not complied with the creditor’s power to continue with enforcement will be restrained.

Invariably by the time the creditor is thinking about bankrupting the debtor the agreement will have long since terminated.

Sections 77 and 78 have teeth only in so far as requests are made during the currency of the agreement.

 

That is not to say a request for the information would be inappropriate and in most cases it would be reasonable to make such a request

although without dressing up the request as if it were made under section 77(1) or 78(1). Add to the request a request for the provision of any default notice

relied upon or subsequent notice of termination and demand.

The difficulty is whether the information will be forthcoming within the requisite 18 days.

Any application for the information should avoid disclosing that the SD has been received in the post or give the appearance of an acknowledgment of indebtedness

so as to set a new period of limitation running.

 

The reality is that if the debtor does not have any of the necessary information to hand and which shows a substantial dispute according to IR 6.5(4)(b)

he will be chancing his arm by proceeding. If the debtor was served by post, given the proof of service difficulties, I would not recommend chancing it.

 

Conclusion

This site is littered with examples of SDs being served by post and forum members then being encouraged to apply to the court to set the SD aside,

often without any information about the creditor’s alleged debt.

The member is encouraged to quote grounds for set aside as ‘debt in dispute’

but without any better information as to what that dispute might be about or how the application to set aid might be moulded to fit IR 6.5(4).

 

I’m in a minority for thinking that it is potentially dangerous for an individual to make a formal application to a court to set aside a SD in circumstances

where he is incapable of demonstrating his application fits in with IR 6.5(4). An application which patently fails to meet the test is likely to be dismissed

before it ever gets issued, just like the petition would under IR 6.11(9). This is because IR 6.5(1) says

 

On receipt of an application under Rule 6.4, the court may, if satisfied that no sufficient cause is shown for it, dismiss it without giving notice to the creditor.

As from (inclusive) the date on which the application is dismissed, the time limited for compliance with the statutory demand runs again.

 

Nonetheless there are examples of application to set aside being made after postal service of a SD where no legally recognizable grounds for set aside are alluded to in the CAG thread.

Notwithstanding, some of those applications get past IR 6.5(1) while others do not. There’s no hard and fast rule. IR 6.5(1) is permissive not mandatory. It says ‘the court may’.

 

Even so, of those that make it through the net and have a date for hearing fixed, a number of those go on to ‘succeed’ as well. I say ‘succeed’ in inverted commas,

because on being served with the notice of hearing, the debt collector commonly withdraws.

He does this by writing a letter to the court offering some form of excuse, saying he no longer wishes to proceed down the insolvency route

and saying he will issue a claim in the county court. He often adds a line asking that there be no order as to costs or some such similar whimper designed to avoid

and consequential cost liability for his abuse of process.

 

In short therefore, the forum member who applied without legally recognised grounds to set aside the SD served by post and ‘succeeded’ in the way described above,

will probably imagine with hindsight that the route he took was the right one. I am glad of his success.

But I have to say that success was the product of luck and no judgment. The result was achieved by a combination of the court declining to dismiss under IR 6.5(1)

and the debt collector’s decision not to pursue the SD, none of which was ever in the applicant’s control.

 

Precisely the same result would have been achieved by the applicant doing nothing.

 

x20


Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

Share this post


Link to post
Share on other sites

then read this by pt who is also outstanding

 

Egg credit card agreements are fundamentally flawed in my view, i have seen a number of the older Egg agreements (Pre 2005) and on each one there are a number of defects

 

Firstly, the word Approved Limit is used, my view which is supported by case law is that the word 3.

Limit which is set out in the margin and the word Approved limit is not sufficient to advise you what the credit limit is or how it will be decided. therefore a prescribed term is not correctly stated

 

the case i refer to is Central Trust Plc V Spurway [2005] CCLR,where HHJ Overend states

 

24. In my judgment, the passages of Lord Nicholls’ speech cited by Mr Say persuade me that:

 

(a)The amount of credit must mean credit in its technical sense, and

(b)That although the use of the word “credit” is not prescribed, there should not be any confusion in the mind of the lay reader as to what the amount of credit is

 

Following HHJ Overend’s view, the agreement should make clear to the consumer, who is likely to be a lay man, what the credit limit is or how it will be determined.

It is not possible to say with any certainty that the documents EGG have provided are clear, unambiguous or that a consumer would understand that the approved limit would be their credit limit.

 

secondly, the agreements fail to state the rate of interest for cash withdrawals. From what i have seen the agreement only states an APR which is not sufficient for cash purchases

as cash purchases includes a 1.25% handling fee which is included in the APR so it cannot be an accurate reflection of the rate of interest. Again a prescribed term is missing

 

Finally Egg will try to tell you that the missing information is set out within their terms and conditions,

if they do this, then in stern words tell them IT CANNOT BE. The reasons for this is that Regulation 2 (4) Consumer Credit Agreement Regulations 1983 (SI1983/1553)

requires that the statutory information set out within Para 3-19 of schedule 1 and 2 SI1983/1553 should be shown as a whole

and not interspersed with other information if the agreement is to be properly executed and compliant with section 61 CCA 1974

 

 

Also it is worth noting that, Paragraph 22 of Schedule 1 Consumer Credit Agreement Regulations requires that the agreement details the default charges payable and Egg Agreements DO NOT

 

 

These are just my observations based upon my own experiences

 

 

__________________

Got an old Egg Agreement (Pre 2005) then have a look here


Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

Share this post


Link to post
Share on other sites

ok edit to suit

 

please read in detail what was said in the pt tread re egg so edit to suit

 

 

For you affadavit....

 

The defendant totally disputes the debt.

 

 

The alleged creditor has provided no assignment from the alleged original creditor

 

The alleged creditor has not provided any default notices in the prescribed form.

 

The alleged creditor has provided no statements for the duration of the account. (it not being uncommon that some debts are made up entirely of excessive penalty charges)

 

Under section 78 (1) of the Consumer Credit Act a formal written request for any true copies of signed consumer credit agreements was sent to (XXXXXX).

via guaranteed/recorded delivery on the (insert the date on the recorded delivery slip here) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies) –

 

I believe there are no properly executed signed Consumer Credit Agreements

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(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.

 

The Consumer Credit Act in section 78(6) States that

 

(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 must also be noted that the agreement must contain the prescribed terms.

 

Consumer Credit Act

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

 

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

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. (cont)

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)

 

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.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists,

then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued.

 

 

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 demand 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 Defendant denies that he is liable to the Claimant as alleged in the demand. It is averred that the alleged ORIGINAL CREDITOR

has served a valid notice of assignment in accordance with section 136(1), of the Law of Property Act 1925,

in respect of the alleged debt. 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.

 

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

 

Law Of Property - s136 Legal assignments of things in action

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only)

of any debt or other legal thing in action, of which express notice in writing has been given to the debtor,

trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action,

is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

 

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same,

or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925

 

 

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;

 

CCA74 189 (1)

“ debtor “ means the individual receiving 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 debtor

 

 

Abuse of Process

 

A statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of The insolvency Rules 1986.

This means that if the statutory demand doesn't give the name of a person you can speak to then it is not valid.

If you try to contact the named person and they won’t put you through then it is also invalid

 

I have on 3 separate occasions attempted to speak to the named contact but on each occasion I have been denied the chance to speak to that person.

 

(log the times and dates here)

 

I refer to:

 

Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor.

In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly.

- JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

 

On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON.

 

I also request the judge order the alleged claimant to remove any adverse data on my credit files.

 

I also request the judge consider making an indemnity award in light of the upset and inconvenience that this has caused me and my family.

 

I also make the request that the judge orders a bankruptcy restraining order against the alleged creditor

 

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.


Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

Share this post


Link to post
Share on other sites

well if you are going for a set a side you have 18 days from the time you got the sd apply to court and will take it from there.


Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

Share this post


Link to post
Share on other sites
Hi a couple of quick questions

 

Do you own your house? and do you own a car worth more than £3000?

 

No House - Living with parents.

No Car - Company Car

Share this post


Link to post
Share on other sites

may i asked to you want to go bankrupt,

 

i would also advise you that this site does not believe in any one being made bankrupt on a un secure debt only in certain circumstances if any.

 

 

lilly


Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...