Sleepless Nights v 1st Credit

[42man]

For HAK...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/112326-dcas-statutory-demands-few.html

[miss muppet]

Hi Sleepless, I did reply to your post on Saturday night but lost the connection and so you didn't get it. Fill the forms in before you go to court as 42 Man has set out. In my daughter's case she swore the affi on the 24th April, hearing mid july. Make sure you read up on the info on Default Notices and Assignment as this was important in my daughter's case. Info on this is kindly provided by Tomterm in the General Debt Forum. Also look in the stickys for the CCA and read up on the various sections, I printed them out for my daughter so she could read them in court. Good luck

[Having_A_Knightmare]

Cheers 42 Man

[tinkerbell20]

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.

 

 

Sorry I meant if by post service is not deemed for seven days from date of posting.

[Sleepless Nights]

Hi All

 

spoke with my county court today & she was very helpful - said I can go in & they will help me with my forms etc. She also said that you have 28 days from issue of SD to apply (don't think that is true) so going in to sort with them. All I need are my forms & SD letter from 1st Credit at this stage

 

Thanks for all your help everyone, it is very confusing when you are not wise on how things work, I still need help as to where to clarify my reasons for having it set aside as points 1 - 8 don't seem to cover me

 

I am really concerned about whether I should own up to the debt or not & if not why

 

Any suggestions would again be welcome

 

Thanks

[Sleepless Nights]

Hi all

 

Is it me being thick and/or not understanding the process for having an SD set aside

 

I am going to hands my forms & swear my affadavit today - Is this all that will be happening today?

 

The court said I should receive a letter within a week (will this letter tell me if it has been set aside & give me a date for the hearing?

 

What happens if it isn't granted set aside - will I then get a letter about a bankrupcy hearing (and what do I do then)

 

Any clarification would be greatly appreciated

[miss muppet]

Hi Sleepless,

Its more likely you will have to attend a hearing so will get letter about that.

In my daughter's case we provided evidence that she had been trying to pay but Barclaycard had kept applying charges and interest so she was getting nowhere, plus they only had an application form with none of the prescribed terms. We only produced this evidence of trying to pay at the hearing though. The really important bit is the lack of a properly executed agreement. Hope this helps.

[Having_A_Knightmare]

Good luck at the Court today.

 

Make sure you have 3 copies with you.

 

I cant see any reason why you will noty get the SD set aside.

 

HAK

[babybear39]

Good luck from me too BB

[Sleepless Nights]

Well applied for the set aside so just waiting to hear now

[babybear39]

Good luck, best wishes and *hugs*

 

BB

[Sleepless Nights]

thanks bb

 

Bit confused though - on the SD it has 1st Credit as the creditor (the people I now allegedly owe the money too however in reply to my cca they have passed onto their clients for them to send me a copy of the agreement

 

Surely 1st cred should have this if they are the creditor named on the SD?

 

Have you also noticed that whatever letter you get from them (and whichever department) it is the same copied signature on each one (god that person must be busy

[babybear39]

If they are the only creditor named on the SD they should have all the docs., but they always don't and refer back to thier client. This is an abuse of process and should be brought to the courts attention as only the owner of a debt can bring court action without naming the original creditor as co-claimant.

 

Query this with the court and 1st crud as only an absolute assignment can allow them to bring any action on thier own.

[Sleepless Nights]

suppose I shall have to wait for the hearing (if I receive one) to bring that up

[Sleepless Nights]

Hi bb

 

How should I query it with 1st cred as they say in their cca response that they have contacted their client - should I not also contact original crditor to see who owns it now

[babybear39]

Hi bb

 

How should I query it with 1st cred as they say in their cca response that they have contacted their client - should I not also contact original crditor to see who owns it now

 

That would be best and you cover all bases then Neither can say they weren't aware of proceedings being in order...

[miss muppet]

Well done Sleepless Nights getting the affi out of the way. We had exactly the same excuse with 1st Crud and don't believe them if they say that they have instructed their solicitors to set aside the SD.

Had some very interesting info from my friendly local TS to-day which might assist - BabyB knows all about this ..... its a bit wordy to post in its entirety but here's a couple of relevant points :

"...Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this - to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice. In our view a debt collector who has bought the debt is the 'creditor' and as such takes on the liabilities of section 77.

The first issue on when the debt collector becomes the creditor is relatively simple. Section 189(1) of the Act defines 'creditor' as 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'

Where the debt collector is not acting as the creditor's agent, or otherwise on his behalf, the only legal basis he can have for demanding payment from the debtor is if the creditor's rights and duties have been assigned to him. Therefore we can be reasonably confident that a debt collector who has bought the debt is the 'creditor'.

[Sleepless Nights]

Hi bb & mm

 

So does that then mean that 1st Credit have bought the debt (been assigned it) as they are the name on the SD & therefore THEY should supply me with the CCA & if they have contaced OC for this then it would be null & void or on the other hand if the OC are STILL the creditor have 1st Credit broken the law by naming THEMSELVES as the creditor on the SD

 

I haven't spoken with TS yet but I think it may be a good idea, any opinions

[babybear39]

They can still ask the original creditor for the CCA but they are responsible for the timescales.

[babybear39]

Miss muppet, can you post your reply from CCBC TS please?

[miss muppet]

Hi, SN

I think the proper term would be "in breach" of the Act, i.e. from same information:

Misleading statements to debtors

Sections 77 and 78 refer to supplying a copy of the 'executed'agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

 

Good idea to raise formal complaint with your local TS, I know its a pain but include copies of all correspondence with 1st Crud and your telephone number. Also have a look at pt's threads, he is an absolute wizz on defence including all the case histories. I love the quote from the website of francis bennion, draftsman of the CCA 1974 re Wilson v First County Trust ltd etc:

 

"Dr Lawson may be interested to know that I included the provision in question (section 127(3) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I am glad the House of Lords has now vindicated by reasoning and confirmed that nobody's human rights were infringed".

 

You'll find most of pt's posts in the legal section of the general debt forum.

[Sleepless Nights]

sorry guys

 

completely lost me here!!

[miss muppet]

Miss muppet, can you post your reply from CCBC TS please?

Sorry BB - what is CCBC please?

[miss muppet]

sorry guys

 

completely lost me here!!

 

Sorry SN, didn't explain myself properly, pt's defences can be found in the Debt Action Group legal issues forum. Its a good idea to aquaint yourself with all the arguements (if your case does go to hearing) regarding why any "agreement" they might send (which sounds unlikely given they have given the usual excuse of referring to Original Creditor) is unenforceable.The quote by francisbennion really points out consumers are protected by the various sections of the CCA.

[babybear39]

Sorry BB - what is CCBC please?

 

Sorry must have got you mixed up with someone else writing to thier TS department...