Link - Court Appearance imminent re: Charging Order

[luke616]

Hey folks,

 

I hope you can help me.

 

I have a debt which has been sold to Link - a most disagreeable DCA.

 

In my absence (while abroad), they managed to obtain a CCJ against me, together with an Interim Charging Order.

 

I now have a court hearing later this month.

 

Based on advice I've read on this forum, I wrote the following letter to Link on the 18th of June 2008:

 

Dear Sir/Madam

 

Re: Account/Reference Number 5186xxxxxxxxxxxx

 

With reference to the above account, I request that you send me a true copy of this credit agreement.

 

I understand that this is my right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974, and am entitled to receive a copy of my credit agreement on request.

Your obligation also extends to providing me with a statement of account.

I enclose a cheque for £1 which represents payment of the statutory fee payable under the Consumer Credit Act.

 

I understand that a copy of my credit agreement should be supplied within 12 working days from the date of this letter.

 

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

Also, since you are a Debt Collection Agency, I would also ask that you supply a signed true copy of the executed deed of assignment for the above referenced agreement.

 

This is an obligation, whether you are the original creditor or not, under section 189 of the Consumer Credit Act 1974.

 

In summary, I DO NOT ACKNOWLEDGE THIS DEBT AND THEREFORE REQUIRE YOU TO SUBSTANTIATE THIS BY PROVIDING THE FOLLOWING DOCUMENTATION BEFORE I CORRESPOND FURTHER :

 

1. True copy of original credit agreement

2. Statement of account

3. Copy of the executed deed of assignment to Link Financial

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued. Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested and consider this matter to be “in dispute”.

 

Thanks in advance and I hope to hear from you within the statutory time limit.

 

I look forward to hearing from you.

 

Yours faithfully,

 

 

 

The letter was delivered and signed for the following day, and I have proof of delivery.

 

To date, I've received no response from Link at all.

 

From what I've gleaned from other posts, (although there is a lot of information on here, so forgive me if I've got it wrong....), as they have not been able to produce the requested information within the 12 day time-limit, they are unable to enforce this agreement in court.

 

Is this the case?

 

If so, does it continue to be the case even if they produce the requested information AFTER the 12 day time limit?

 

 

Any advice would be gratefully received.

[Docman]

Link can't enforce after 12 days if they haven't supplied a CCA within that 12 day period. However, when they do comply and send a CcA, then the restriction on enforcement in this section comes to an end.

[veryweary]

Is the court hearing for a Final Charging Order?

[luke616]

Yes it is. An interim one has already been granted.

[FunkyFox]

Hi

 

IMHO your best bet is to try to get the CCJ set aside and the interim CO discharged. I have recently been succesful in acheiving this with 2 judgements.

 

In order to do this you will need to demonstrate to the court that you have a valid reason for not defending the claim in the first place i.e. not being in the country and not knowing about the hearing (you will need to prove this - do not commit purgery) or something such as illness which can be validated. If you admitted the claim in the first place you will find it difficult to do this.

 

If you can show a valid reason for not defending the original claim AND you can show that you have a vaild defence i.e. no or an unenforceable CCA then you should be fine. I was advised by Cobbetts that in their opinion a set aside application fulfilling those 2 criteria is simply not worth objecting to.

 

Other considerations relate to what happens if the CCJ is set aside. You may end up in the fast track (and the costs that brings) if its over £5k and you may well still have to defend and present a case. It helps to be sure that you have a reliable defence otherwise you could end up with much greater costs. Just because a DCA can't come up with an enforceable agreement in 12 days doesnt mean they won't find one 4 months later, just in time for a court apperance.

 

This is just my personal opinion as to the most effective to fight a charging order. Simply saying its not fair or predjuces your other creditors or any of the other arguments does not seem to work in my experience.

 

Glad to help if I can. FF

[luke616]

Thanks for the advice FunkyFox.

 

I actually don't live in the UK any more, and at the time of the CCJ hearing, I was living in France. I only received notification of the hearing (via redirected post) AFTER the hearing date.

 

I can prove my whereabouts with flight bookings and rental receipts for the apartment I was occupying in France.

 

As I am abroad, I am not going to be able to attend the hearing on the 22nd of this month.

 

Can I write to the court beforehand with my objections/defense? Or do I need legal representation in court to represent me?

[FunkyFox]

I would complete a N244 application for set aside (costs £75) ASAP (the form is online) and write to the court asking for the CO hearing to be adjoured or rescheduled together with the set aside app. That way at least if the set aside is succesful the CO element becomes irrelevant.

 

Assuming that Link don't consent to the set aside then if at all possible I would very much try to get to the hearing or send someone if not. Having said that if you were out of the country and can prove it clearly then that alone should be enough to secure the set aside.

 

Just out of interest when was judgement. Its always good to apply for set aside as soon as you know about judgement. Also how much for?

 

If you need any help with the forms then just ask (if thats what you choose to do). Good Luck

 

BTW I don't think you have a hope in hell of objecting to the CO and not attending the hearing. The set aside is really the only course of action. IMHO

[luke616]

Invaluable advice, FF. I really appreciate it.

 

Judgement was back in May, for around £11000.

 

I'm going to complete the N244 application now, and send it off today, asking for the CO hearing to be adjourned/rescheduled, as you suggest.

 

Thanks again.

[luke616]

Just one more thing - may sound like dumb question...

 

I am staying in temporary accommodation in Spain at the moment, and do not have access to the mailbox here.

 

I get post sent to the local post office where I pick it up.

 

In the N244 form, when it asks for my address, which should I give? (any correspondence sent to the apartment address is unlikely to reach me)

[FunkyFox]

I'm not really sure to be honest. You definately need a reliable address where documents can be sent. Perhaps a friend in the UK who could receive it, scan and email it to you maybe? I would always recommend follwoing everything up with a call to the court just to check papers have arrived etc. Fax is also quite good for communicating with the court. Perhaps ring the court and explain the situation and see what they recommend?

 

If you need help with the specifcs of the form there are lots of threads on here about making set aside applications. Remember to send the letter also to ask for the set aside hearing to be scheduled with the CO hearing.

 

Also do include explicit details of why you did not know about the hearing, more detail the merrier.

 

Good luck and let us know how you get on?

[luke616]

The N244 is completed, and ready to go off to the court tomorrow.

 

I have also drawn up a "PART 18 REQUEST FOR INFORMATION" to Link (I saw this in another post)

 

Quick question:

- Why is it recommended not to sign letters sent to the creditor?

[FunkyFox]

The reason for not signing the letters is that its not unheard of for a DCA to fake a credit agreement. Sad but true apparently.

[luke616]

Blimey...

 

...Thank goodness for the power of the internet forum, eh?

[Docman]

Luke616

 

I think that technically you need an address in England & Wales for service of court documents unless you get the permission of the court. Normally, a solicitors address is used but if you are a litigant in person that option isn't available.

 

You can use a friends or relatives address. Snag is some DCAs think you're living there and start to hound you friends. You could use a redirection service but they are not cheap

[luke616]

Hi folks.

 

I am waiting to hear back about the outcome of the hearing to have the CJ judgement set aside.

 

In the meantime, I have had a letter from Link (dated 12th August) regarding my request back in June for a true signed copy of the original agreement.

 

Their response was:

 

Upon receipt of your request dated 18th June, the agreement and statement was requested fom the original finance provider, and we are currently awaiting these documents. As to date we have been unable to supply you with this information we suggest you contact the original creditor direct with your request.

 

Am I right in thinking that this case has nothing to do with the original creditor any more, and that Link have a legal obligation to provide the requested documents themselves?