Sleepless Nights v 1st Credit

[creditcardmug]

Well lets start from when you got it, what date was that?, how did you get it 1st/2nd class mail?

[Sleepless Nights]

I received it on Saturday & I am sure it was 2nd class

[creditcardmug]

I suggest you act NOW, as i have said before i am not au fait with these but i do know that you only have 18 days to act, you have to fill in two forms, you have to go to the nearest court that deals with sds, and you have to swear an affidvit. only you know haw much time you have left to do all this, but i know that if 1st get the idea you are not doing all this they WILL go to the next stage.

[Sleepless Nights]

Thanks ccm

 

Do you know if they will help me fill in the forms & what exactly is swearing an affadavit?

 

I sent them a cca request a few days ago

[creditcardmug]

THere are two forms, you can download them, i dont know the links off hand but look on the site, you have to get a hold of this, it could bite you on the a$$e if you dont. ill have a look meanwhile.

[Sleepless Nights]

Thanks ccm

 

I'm sorry I just sound pathetic but it is really starting to worry me

 

I have forma 6.4 & 6.5 downlaoded that babybear told me about

 

The worries I have is that 1st Credit know I'm a h/o etc as I blabbed it out when I first spoke to them not knowing what they were going to be like. Also unlike quite a lot on these forums my original debt is only a couple of years old & I know I still owe it, so is swearing an affadavit a bad move

 

Would they help me at the court to fill the forms in or will I need to do them myself (daunting)

 

Is it worthwhile contacting 1st Credit & seeing if I can increase payments by anyway & if they refuse I could use that in court?

 

Sorry to babble but I want to ensure I am doing everything right

 

I shall contact my local court tomorrow to see that they deal with this

[creditcardmug]

It doesn't matter what you said or what they said on the phone, these people have NO scruples and neither should you, take the advice of others here and fill in those forms and take them to the court and swear the affidavit.

1st know that your h/o, what does that mean? remember you are talking to people here who now NOTHING about ANYTHING.

 

The reason they issue these things is that it costs them nothing to do it, if they issued a court claim they would have to pay up front, and have no guarantee of getting the money back.

 

Its an abuse of the court process, but the courts wont do anything about it, but once they have done it, you have to respond, or face the possible consequences.

[Sleepless Nights]

Thanks ccm

 

You & the other guys (& girls) have been ever so helpful & supportive

 

I have just been reading the harassment from 1st c redit thread & I am wondering if I should send any further letters as the last time I spoke to them I had a female (got her first name) ask me about me borrowing money from family &/or friends to pay the £1000 payment she wanted within 7 days as i had already told her that there was no way that I could pay it (offered to pay about 1/2 of that by the end of this month & try to set up a monthly payment arrangement with them but she said no as I hadn't made any contact with them for 6 weeks)

 

There are voicemails on my mobile which I haven't listened to yet but would imagine they are from them

 

What do you think & are there any letter templates for these letters

 

Again thanks

[creditcardmug]

Thanks ccm

 

You & the other guys (& girls) have been ever so helpful & supportive

 

I have just been reading the harassment from 1st c redit thread & I am wondering if I should send any further letters as the last time I spoke to them I had a female (got her first name) ask me about me borrowing money from family &/or friends to pay the £1000 payment she wanted within 7 days as i had already told her that there was no way that I could pay it (offered to pay about 1/2 of that by the end of this month & try to set up a monthly payment arrangement with them but she said no as I hadn't made any contact with them for 6 weeks)

 

There are voicemails on my mobile which I haven't listened to yet but would imagine they are from them

 

Ill post a good letter which will stop this as soon as i get to my other pc with the file on it.

[smt37]

For those subbing and prefer copying and pasting, the word versions of the set aside forms are also available online:

 

http://www.insolvency.gov.uk/pdfs/forms/6-4.doc

http://www.insolvency.gov.uk/pdfs/forms/6-4.doc

[Sleepless Nights]

Morning All

 

I am going to sort my set aside in the next couple of days & I want to make sure the reasons for the set aside are correct as in #42 by 42man

 

Can I use non production of a CCA as it is still within the time allowed for them to produce it

 

They issued the SD before I requested my CCA (does this make any difference)

 

Do I admit on the affadavit I have received my SD (it was posted by them but I don't have the envelope

 

Are the 6.4 & 6.5 forms I have downloaded from here sufficient as they have no headings on them?

 

Any help would be greatly appreciated

[42man]

You have to say the debt is totally disputed....

 

Then add the fact that they have not sent the CCA and are in default of your request

 

Say that you received the SD in the post by second class and thereby you believe it has not been served properly...

 

Say that you have not received any default notices, no notices of assignment

 

You believe that the alleged debt could contain a substantial amount of charges too....

 

You might find this useful....

 

I am totally disputing the debts claimed by First Credit

 

1.2 I believe there are no executed signed Consumer Credit Agreements, If they had been able to supply these agreements then they would have done so already

 

1.3 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 First Credit Ltd. via recorded delivery on the (date) – to date they have not sent any copies of any Consumer Credit Agreements and are in default of that request (1) – (see attached documents labelled 1)

 

SECTION 78 (1) CONSUMER CREDIT ACT

 

(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; and

 

(b) if the default continues for one month he commits an offence.

 

2 -. I believe that, at the time the creditor has brought this demand on the basis of the assertion in a sworn statement that a liquidated sum was payable at the time. I do not believe that they knowingly misled the court, but at no time was the credit agreement provided in evidence, and I have not been supplied with a copy of the credit agreement despite my legal rights.

 

2.1 -. If the agreement is, as I expect, non existent or unenforceable, 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 statutory demand was issued.

 

 

 

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

 

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)

 

DEFAULT NOTICE

 

 

The Need for a Default notice

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

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

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

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

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

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a 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. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

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

 

 

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

1 Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

[Sleepless Nights]

Thamks 42man

 

Can I use the forma I have downloaded from here or do I have to have ones from the court & is it best to fill them in before I go or when I arrive there?

[42man]

Download the forms 6.4 and 6.5, fill them in, after filling them in, take them to the court, get the affadavit sworn at the court...

[42man]

The forms from Babybear's earlier post are the forms to use....yes you will need to fill them in...

[Sleepless Nights]

Thanks 42man

 

How long before I know if it has been set aside or not?

[Sleepless Nights]

Hi Guys

 

Just about to fill in my set aside forms & have become worried on what is on the forms as to what 42man said a few notes ago

 

Can anyone settle my nerves please

[Having_A_Knightmare]

Say that you received the SD in the post by second class and thereby you believe it has not been served properly...

 

42 Man

 

Is this law and were is it quoted..

 

Cheers

 

HAK

[Sleepless Nights]

Hi HAK

 

Is that enough to have it set aside as the time limit for the CCA request isn't up yet & is very tight time schedule for this (or can I still use the CCA as I have already requested it)

 

Having looked at the forms I cannot see where I put these reasons as they don't see to be listed

 

Sorry for sounding thick but I want to make sure that I have these forms spot on

 

Can anyone confirm is it 18 days from date of letter or date I received it (suppose you could put any date if they posted it 2nd class?)

[Sleepless Nights]

Hi anybody

 

Any suggestions to my last post PLEASE

 

Thanks

[tinkerbell20]

Hi anybody

 

Any suggestions to my last post PLEASE

 

Thanks

 

 

Its 18 days from date of service - if by post then its seven days.

 

Default of CCA on otself isn't relevant to set aside as technically the debtor isn't trying to enforce the debt. Its important to concentrate on the fact that the debt is disputed and the creditor hasn't provided any evidence of it.

[Sleepless Nights]

Is date of service the day you received it? or theday it was written on? as there are 4 days in between

 

Where does 7 days from posted come into it, every thread I have read on this has said 18 days (normally) none have ever mentioned 7 days on a posted one (which mine was)

 

Still not clear on how to fill my forms in correctly

 

Any more suggestions

 

Thanks

[babybear39]

I'm no expert on filling in SD forms.

 

Your best bet is to call national debtline National Debtline, for FREE CONFIDENTIAL and INDEPENDENT ADVICE call 0808 808 4000

[Sleepless Nights]

Thanks bb

 

I am reading the thread"1st Credit not complying with stat barred debt" & on there some are saying because the stat demand letter from 1st Credit doesn't specify which court this isreason for a set aside. Can anyone confirm if this is true as my letter doesn't state a court so I am taking to my nearest available

[Having_A_Knightmare]

\SN

 

Take the SD tyo your local Court.

 

Do three Copies.

 

HAK