Me & My Debts

[ukaviator]

Hi Littleduck1

 

You can represent yourself in the small claims court. Most people choose not to use solicitors, but there may be times when you decide you want to seek advice from a solicitor, if the claim is particularly complicated or likely to be disputed, for example. You should note, legal aid is not usually available for small claims cases, so a Solicitor would be expensive. Even a no win no fee company, wouldn't leave you with much after their cut of your win.

 

When you arrive at the court, you should find the usher who is organising the court schedule for the day, and inform them that you have arrived. You should be careful to arrive in good time for your appearance as if you are late or fail to attend, it is taken quite seriously.

 

Most courts of justice now require visitors to go through a security check before entering the building. Cameras are not allowed. Although camera phones are tolerated, security staff could insist on holding onto any cameras until the owner leaves. Sometimes the security staff will also take people’s names and ask which hearing they are attending.

 

After security the next step is to find the usher dealing with the case and to sign in. At some courts the ushers will sit behind a desk ready to take people’s names. At other courts the ushers sit in the court-room with the judge and only come out to take names in between hearings. Where there is any doubt about the procedure, or if the usher cannot be found, the list of hearings should be located. This will indicate which judge will deal with the claim and in which court room it is to be heard.

 

If the other side turns up it is quite likely that both parties will find themselves sharing a relatively small waiting area. For some this could be the first time they have seen each other since the dispute arose. If you feel uncomfortable or threatened by the other side, you should talk to the usher who will try to arrange for you to wait separately.

 

Although small claims trials are public hearings they are often held in relatively small court rooms and the judge is unlikely to want large numbers of people in his room unless they are there to provide evidence.

 

It is usual to talk to the other side, or their representative, before the hearing. Sometimes people are so angry about the case that they do not want to, but it can lead to disputes being resolved.

 

If the other side is legally represented, people may find that talking to the lawyer is easier than talking directly to their opponent. If the parties do reach an agreement before going into court they should notify the usher.

 

If the judge knows that the parties are agreed and that the hearing will, therefore, not take long he may deal with it sooner than he had originally intended.

 

So try and relax, it's like being in a large conference room. Hope this helps.

[1littleduck]

Thanks uk for that, but it still is very worrying. I have posted the acknowledgement to the court today, and sent it recorded delivery, so it is guaranteed to arrive. I guess I have just got to wait now and prepair my defence.

I got some sleep last night with the aid of a nytol, so hopefully I can get my head around things a bit better.

[1littleduck]

is over £6000.00 in total still delt with in the small claims court, as this is what the outstanding sum is with their charges etc on it, or have I got a bigger court to face?

[emmaf01]

Sorry if I am repeating an earlier question, but are you planning to put in a claim to get the charges back?

 

Sorry- its a bit late for me and the brain isn't up to speed!

[1littleduck]

Hi emma,

I really dont know what to do..

Is the agreement legal, and if not, what will happen?

They will have receive my accknowledgement and I only have a number of days to decide what to do...I'm a bit lost at the min...any suggestions.

If the agreement is not enforcable, what does this mean, will I still have to pay them and if so, any amount I can get back will help, if I dont have to pay them, then I wont be claiming anything, I will be glad it's all over...!

[emmaf01]

Have you posted up a copy of the CCA somewhere fore people to have a look at? That is the only way for people to say whether it is enforceable.

 

If it is, then you can claim back charges and dispute the debt on those terms.

 

If it isn't then there is your case.

[1littleduck]

Hi emma,

I have posted up a link to the cca in post 63 and a link of the court papers issued to me.. the agreement is an application form. The credit card in question was applied for on-line I think, so I dont know if this will make a difference.

The form would have been sint to me prior to the card being issued.

[citizenB]

This is the link to littleduck's claim form and agreement. Post 63 in this thread, but saves scrolling back.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/155724-irresponsible-lending-4.html#post1713240

[emmaf01]

Many apologies- Capital One/Debitas have fried my brain recently. Grrrrrrr!

 

So, if that is their idea of a CCA, then they'll be out with the crayons for the rest of their court documents. No wonder they sent that letter- they want you to run away crying because that is the only way you won't win.

 

When did you apply for it on-line? How come you then filled in another application form?

 

We can scout round the Legal Issues section for defence material this weekend, if that's ok?

[1littleduck]

Hi emma, thanks for that.

I am not sure that I applied online, it is just that it was a wanado/marbles card, which makes me think maybe I did, they must have sent me the stuff to sign as they do before you get your card I think, but this is the document they call the agreement, and if so, is this a legal agreement.

 

I think that credit card are applied for on-line, but the agreement, if accepted, is then sent out for signing prior to the card being dispatched, as my daughter got a credit card a few months ago and this is what they did.

 

It does say in the box above the signature, the words..'whether or not this application is accepted'..this is what makes me think that it may not be legal.

 

I dont know whether a digital signature can be used for on-line credit card applications, as they dont know you from adam, I think, and I am only guessing, that only your bank has a copy of you signature as you have special passwords etc to get into it.

 

If they, (and I 'm sure they haven't), have another paper market 'credit agreement' and they produce it in court, are they in breach of the cca request I sent them for with holding the information ?,

as I say, I dont think they have anything else, and certinally not a default notice as I have not received one.

 

 

I have about 10 days to put in my defence and do anything else I have to do as the court would have received their papers back yesterday.

 

I really appreciate all your help, and everyone else's help, without you peeps on here, me like most people would be really stuck.

[1littleduck]

Please can someone help, time is getting short and I am really starting to panic!!

[surfaceagentx20]

The document you have supplied is the first of four pages comprising an application for a Marbles Card. The application was to be dealt with by post. At the foot of the application form it refers to pages 1-4 being returned in the ‘envelope provided’. Page 1 comprises a signature box which includes the words: This is a credit agreement regulated by The Consumer Credit Act 1974. Sign it if you wish to be legally bound by its terms.’

The agreement must comply with the Consumer Credit (Agreement) Regulations 1993, specifically in relation to either a fixed sum or running-account credit.

Regulation 2(7) requires

Documents embodying regulated consumer credit agreements other than exempted agreements shall, subject to paragraph (9) below, contain a signature box in the Form numbered in Column 1 of Part 1 of Schedule 5 to these Regulations and set out in Column 3 in so far as it relates to the type of agreement referred to in Column 2 ..

The wording in the signature box corresponds with the prescribed wording set out in Schedule 5 for this type of agreement.

Regulation 6(1) requires:

6 Signing of agreement

(1) The terms specified in Column 2 of Schedule 6 to these Regulations in relation to the type of regulated agreement referred to in Column 1 (and no other terms) are hereby prescribed for the purposes of section 61(1)(a) of the Act (the terms which must be contained in a document if a regulated agreement is not to be improperly executed) and of section 127(3) (the terms which must be contained in a document before any enforcement order can be made under section 65(1) if section 61(1)(a) was not complied with).

Those minimum prescribed terms in so far as this application is concerned are:

A term stating the amount of the credit or a term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

A term stating the rate of any interest on the credit to be provided under the agreement.

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.

In Wilson v Hurstanger [2007] Mr Recorder Michael Douglas Q.C sitting at Coventry said

'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 section 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.'

This passage from Recorder Douglas’s judgment was cited with approval by Lord Justice Tuckey when the case reached the Court of Appeal.

Certainly these terms are not upon page 1 and were the agreement comprised of just page 1 alone there would be no difficulty in saying the form of agreement failed to comply with the Regulations. The question is therefore whether the minimum terms are found elsewhere in pages 2-4.

If you do not have any of the pages 2-4 I would be inclined to deny the agreement is an enforceable agreement.

x20

[1littleduck]

Hi x20

Thank you for your responce, the only page they sent me was page 1, along with 6 statements. I have no idea what the other pages contain, should I write to them again asking for them?

[1littleduck]

Hi all,

Could anyone help me with my defence letter as this has to be in i think by monday and i have to post it as i could not get into the site online.

Could I more or less copt X20's letter and add to it that i did offer payment but they would not accept it?

I have another creditor chasing me, so if i get this right, maybe i will be in a better possition to deal with them

Thanks

[1littleduck]

Hi,

Just been told by GP that HFC did send out a default notice, and the account was 2months in arrears, I have not got the letter, they have and will take to long for them to send it to me.

I have told GP today that i will not be using them again...hope i am doing the right thing!!

[emmaf01]

Seeing that they haven't even kept you informed about your accounts, or told you you are two months in arrears (is that them or you?), I would be telling them to get lost.

 

Just get a file for each account and use the template letters on here, you'll be fine.

 

Have you looked in the Legal Issues section for a standard defence to adapt? There are usually some around people's threads. I'm not experienced with that so I can't say much more!

[emmaf01]

A basic defence to start to tweak is here.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/156156-help-mum-being-taken.html?highlight=birkenhead

[1littleduck]

Thanks emma, I have had a look, and I dont think that is the right kind of letter, and I am seriously running out of time....I dont know what to do now....omg I really need help....I have the Nationwide on my back as well now, but i am going to start a new thread for them i think.

[surfaceagentx20]

LittleDuck,

 

As I have said before, I can't be certain the agreement is enforceable for the simple reason that all that has been shown is page 1 of a 4 page application form. For those reasons I suggested the claim should be defended on the basis the agreement is not enforceable and require the Claimant to prove the contrary.

 

Likewise with the DN. I understand you now say the agents you retained to assist say a DN was received but you do not have a copy of it to show and it is thus impossible to say whether it is compliant.

 

Knowing the time restraints I have produced a form of defence for your use in which I refer to the production of the application form and how it neglects to incorporate any of the minium prescribed terms. I have also pleaded the absence of an effective DN, though of course a DN is not specifically mentioned in the Particulars of Claim.

 

I have concluded with a general denial of liability for the debt, any charges the collection charge and the claim to ongoing interest. It consitutes a complete denial of the entire claim.

 

Let me know if you have any concerns or queries. I noticed you mention earlier about putting something in about having made an offer of payment. Do not include reference to an offer to settle in the Defence.

 

DEFENCE

 

1 The Defendant admits entering into a contract with the Claimant. The contract was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may have complied therewith and the extent to which the Defendant may or may not have complied therewith.

 

2 On (date) and in response to a request made by the Defendant pursuant to the provisions of CPR 31.14 for a copy of the contract mentioned in the Particulars of Claim, the Claimant purported to disclose the same and gave inspection of a document constituting the contract relied upon. The document disclosed was not a contract but merely an application form signed by the Defendant on 11 January 2005. The document relied upon contains none of the minimum prescribed terms required by regulation 6 of The Consumer Credit (Agreement) Regulations 1983. In the circumstances the Defendant denies that the agreement was properly executed and avers the same is now unenforceable in whole or in part.

 

3 Further and if it be alleged, it is denied that the Claimant served upon the Defendant a default notice pursuant to section 87(1) of The Act and which was in prescribed form and compliant with the provisions of section 88 of the Act.

 

4 Without prejudice to the generality of the Defendant’s contentions set out at paragraph 1, the Defendant avers that on a day prior to the commencement of this case the Claimant terminated the agreement and pursuant to termination has made demand of the Defendant for the payment of money the subject of this claim.

 

5 Incorporated within the sum demanded by the Claimant are sums claimed for administration fees, late payment charges and interest. The Defendant repeats the contents of paragraph 2 of his/her Defence. Further, it is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

6 Further and in any event, by reason of the matters set out at paragraphs 3 and 4 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 4 hereof were steps which the Claimant was not entitled to take.

 

7 In the circumstances and without prejudice to the Defendant's primary contention that the agreement is unenforceable, neither the Claimant’s default notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

 

8 The Claimant's claim to be entitled to a collection charge of £911.78 is denied. It is denied that the Claimant has incurred any such charge, alternatively that such charge if incurred accurately represent a sum lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the same to be penal and unenforceable at law.

 

9 The Claimant's claim to be entitled to recover interest at 19.8% per annum on any principal sum for any period of time is denied.

 

10 The Claimant’s claim to be entitled to £6,459.05 or any other sum under the agremeent is denied.

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

Signed:

 

Dated:

 

Hope this helps

 

x20

[1littleduck]

Thank you very much surfaceagent...thats agreat help to me....I will let you know what happens...will I have to remember what the statement says and ssay all of this in court?

[1littleduck]

Hi,

I have posted my defence to the court yesterday by recorded delivery, so they should have it now...

I guess I have to wait to go to court now...and I am really scared....will I have to now all about the laws that I have quoted in my defence?, I dont want to look stupid infront of the judge...if i loose, will they put an order on my house...or will they give me a payment to make weekly..i really dont know what happens next.

[questioning]

Its a good idea to ring the court just to check they have received your defence.

The claimants have 28 days to respond to your defence, if they do not contact the court to give their intention to proceed then the claim will be stayed. If they do wish to proceed with their claim against you then you will receive an allocation questionnaire to fill in, this gets the case transferred to your local county court.

 

Yes you are quite correct in saying that you will need copies of any case law that you have included in your defence, and make sure you understand what it all means. If you need copies just ask.

 

If you loose you would be able to let the court know that you cannot afford to pay forthwith, and could come to an arrangement to pay a CCJ by installments. You would need to show an account of your income and expenditure to reveal the surplus income you have. You would pay the CCJ from your surplus income. Only ever make an offer of what you can comfortably afford.

The only way they would get a charging order on your property is if you failed to make the arranged payments on the CCJ. They would have to apply to the court to get a charging order.

Please don't worry about this now. This is all along way off.

If the claimants do proceed with this case it will be some time before you would have to appear in court so you have plenty of time to read up on the forum to see what might transpire.

Please try and relax a little. I haven't read all your thread but you sound really down. You haven't lost at this point. They may decide not to continue. Even if they do win, you will only have to pay what you can afford. Remember the saying "you can't get the knickers off of a bare arse" So please try and think happier thoughts. I know its easy for me to say, but there really are worse things in life. I hope this has eased your mind from worrying so much.

Edited October 10, 2008 by questioning

[1littleduck]

Hi questioning.

Thanks for your reply, and yes I am very down about it all...I am considering bankruptcy, the only problem with that is my x partner, whom i still have to live with would love that, as i think they will offer him my share of the house at a really knock down price, then he would have got everything out of me....

I have really made such a mess of my life now..

The defence i have put in is the one above which surfaceagent20 did for me, so i will learn this.

It is very hard to look on the bright side of anything right now, and all that the court will be able to take from me would be about £1.00 per week as I have so many other debts as well...so they may even decide to make me bankrupt anyway i think...no win i think!!

[emmaf01]

1littleduck, you have not made a mess of your life- you just got into a bit of debt and your relationship ended. It is not your fault. Sometimes these things happen- and your ex sounds like a toad!

 

Are you getting legal advice about your separation? Have you made plans to move out? Being stuck in the same house has him does not sound very healthy. And a solicitor could also advise on your financial options.

 

PM me if you need anything or just a chat- I was stuck in a house with my ex for some time and it was horrid.

[1littleduck]

Hi emma, thanks for that...I am struggling with the x boyfriend..I cant afford to leave at the min as I have 2 daughters just started uni and have no money to rent a house..and if I leave, he owns half the property and will not put it up for sale...and even if he does, he will offer to buy me out at a silly sum...just enough to pay all of my debts and I still will loose everything..so he wins and I am really stuck and mite as well go BR..I loose all ways now.

He is a money grabber, and I found out to late..he was very cleaver!!