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coolerking

Help ... Been to Court ... Big Credit Card Problem

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Been to court this to hear application for OC to strike out claim on grounds I had no defence.

 

Essentially, I got into financial trouble and could not afford to the plans we agreed.

 

Requested CCA over 12 months ago and they only supplied a (poor copy) under court directions a little while ago.

 

The judge explained that when the OC first raised the court action they did not have the CCA and therefore he could strike out the claim because they have complied with s78 CCA 1974 but if he did do they would get very upset and really go after me and as this involves fastrack this would cost me a lot of money and i would lose. Plus they could go for CCJ/Bankruptcy if they wished to and probalbly would.

 

His way out was to stay the hearing to allow us time to negotiate but he explained that it would need to be a sizeable offer/repayment plan in order to appease them as they will be very ****ed off.

 

While he said the OC sols had made mistake and I knew my stuff, he pointed out morals of the position and I explained I was not trying to avoid the debt but was desperate and need more time.

 

I believe they will want more than I can afford to pay and as the inference is a very high profile case in the papers I would appreciate any help /views you can give.

 

My only defence now is poor quality and creditibilty of the copy CCA which they previously admitted they did not have.

 

To everyone else be very careful out there.

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I presume everything else was in order...defaults ? prescribed terms ? excessive charges ?

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well had my defence based upon;

 

CPR 16, 7.3 - original agreement not available

 

Civil Evidence Act 1995 - as copy only produced at late stage, following court directions goes to creditiblity of copy agreement. Looking for proof of documentation procedures.

 

Lack of Prescribed Terms due to poor quality copy.

 

S85 CCA 1974 - no copy agreement was sent with replacement card.

 

Default - approx £1k in charges but overlooked the default angle, although I had asked for charges but they did not consider material in relation to total claim.

 

However, as the judge immediately took control and rebuked the sols for their mistake and me for trying to avoid the debt I did not get a chance to talk about my defence and I think it would have antagonised things.

 

As I said he could struck out OC Claim under s78 as they were in default when they raised the court claim and could not legally pursue the debt until cca produced many month later.

 

However, if I did this it would really upset OC and they would really come after me and potentially cost me £20K (inc costs) in fastrack which he was pretty sure they would get.

 

The picture he painted was pretty scary and I if had the cash I would settle tomorrow and given I have changed jobs this is a big threat to my future/home/family.

 

He did acknowledge I knew more than the sols tho.

 

Any ideas as they could just refuse my offers of payment.

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Hi Coolerking,

 

I am sure the judge was just using the moral high ground to get you to give in without a fight.

 

The judge should have ruled on facts, not whether it is right or wrong to not repay an alleged debt.

 

Most people who come to this site do so because a DCA/creditor has finally pushed them to the brink and people turn to searching the internet to seek any kind of help or advice that is available.

 

That is what happend to me and countless others you will see around the forums.

 

Unfortunately I don't have the legal knowledge to help you, but there are many people on CAG who do.

 

Try to read as much as possible on court claims and defences, there is alot of info available which you may find useful.

 

Always ask for advice before proceeding with anything though, another persons input/opinion is always useful.

 

Regards

 

Santos


Springfield

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The judge conceded that I was within the law and using it to my advantage and knew more than counsel and claimants sols.

 

However, if he struck it out as they were in default, a technicality they would simply start proceedings again, which would mean a trial and fastrack and they would not stop until the got a summary judgement and made an example of me.

 

Is the CCA enforceable, well it is a copy and a poor one at that and it turned up very late in proceedings and only when I issued an unless order under CPR so i am naturally very dubious about it. The front clearly states application but it also has CCA 1974 so the front seems to comply. The T&C on the back are barely legible and you cannot see all the prescribed term IMHO.

 

The other considers are that under CPR 16 7.3 you ar supposed to produce the original at the hearing.

 

The claimant (originally said the didnt have it) and say according to DPA guidelines are only obliged to retain for reasonable length of time. I have spoke to OFT, FOB, FSA, IFCOM and there is nothing hard and fast but most financial institutions would do 6 years plus current which IMHO should be from date of close and not date of opening the account.

 

Under s85 CCA 1974 they are supposed to send copy of original with replacement cards but they did not do this so technically they defaulted here as well.

 

As regards Default Notice, again technically this in invalid as it includes c 10% in charges/interest but they would only be requested to re-issue a correct one.

 

So as you can see most of this technicalities will only defer/delay things and will only serve to **** the off the claimant, especially if you make them look stupid like I did recently.

 

The judge ordered a stay & recommended I start negotiations now and show some real committment to paying this back but even if I pay the max I can, assuming I stay in employment it will still take 3 years to pay off and I do not know if that will be enough.

 

I assume though if the Claimant rejects my offer, we will go to another hearing before going to trial to consider my offer.

 

What I am really worried about is CCJ/losing my house and the judge seemed to think that was a real threat here and someone at the sols will take a lot of flack for this.

 

Views?

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I have only recently returned to this site due to a court action, so I'm not fully conversant with the latest arguments, but...

 

My understanding is that if the default notice is invalid in any way, then your liability is reduced to the arrears. Because the agreement has been terminated (unlawfully), then they can only reinstate it if you agree, which of course you won't. This means they cannot reissue the default notice as the prescribed wording assumes the agreement has not been terminated. If I understand correctly, as they unlawfully terminated the agreement, they cannot persue you for the balance.

 

The default notice will almost certainly be invalid as it is usually posted and the 14 days they give you is 14 days from when they produce the letter, not from date of service (usually 2 days later).

 

Make sure you verify my understanding... :-)


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I will have to wait and hear clafify the situation on that one.

 

It would need to be rock solid for me to go to possible trial or take them on again, im just worried that the judge may order to re-issue this taking out of default but i may be misunderstanding they way it works

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This sounds very much like the judge is on your side. I would think very seriously about what he has said and, in particular, read between the lines. As he is a judge he cannot say very much.

 

In effect he has said that you might win the battle but the way you are planning to go won't win you the war. Perhaps you need to involve x20 and/or pt for further advice.


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I agree with the above sounds like the CCA was enforceable, the default notice sounds invalid, how much is their claim for roughly?


Lloyds TSB (SARS) request sent 9th June 2006

£2191 Moneyclaim Issued 11/08/2006, Acknowleded 17th August Defence 14 Sep, AQ returned 5/10/2006.SETTLED IN FULL £2,670 26/11/2006/ Lloyds Credit Card SETTLED IN FULL £267

MBNA SETTLED IN FULL 15/09/2006 £829

Citicard (SARS) request sent 22nd June 2006 Moneyclaim issued 19th Sep, Defence and AQ received 5/10/2006, AQ returned 5/10/2006, part refund received 10/10/2006

GE MONEY SETTLLED IN FULL £400

Barclaycard Me and Mrs SARS sent 19/10/2006 settled £350

Welcome Finance PPI 2 accounts one settled £1018 waiting on other

GE Money PPI 1 account settled 8/5/2008 £560 2nd account SETTLED IN FULL £3,599.78p 15thAugust 2008

Lloyds TSB PPI CC complaint sent 10/04/2008

Black Horse PPI with FOS 20/05/2008

HFC PPI complaint sent 22/05/2008

 

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Not only are you better informed than their counsel and solicitor, I would venture to add that the Judge could also be better informed.

 

You need to talk to PT.

 

(well done so far, BTW) :-)

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ok, update as follows;

 

received nice letter from OC sols offering me;

 

a) a nice and affordable repayment plan

 

b) immediate cash settlement on very favourable terms.

 

 

even if option a will take a very long time to pay back at this rate, at least if it is realistic and while cash settlement is preferred route out of my reach at the moment.

 

Do you think that if I was able to secure the cash at a later date they would settle on similar terms?

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Hi Coolerking – any chance you can scan in a copy of the agreement for future reference?

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sorry i havent been around for while been a bit busy.

 

Update on the credit card front;

 

went for pre trial hearing and the judge rebuked counsel for claimant as they served proceedings without providing a copy of the CCA and he if he wished he strike it out as they did not comply with my s78 request until i served cpr.

 

he also rebuked me for trying to avoid the debt until I explained that i was pretty desperate and it was my only course of action at the time.

 

the upshot is that he could have struck out the case in my favour but he felt lloyds would come back at me as they would be very angry and he stayed to give us time to do a deal.

 

as you know my defence was based upon poor documentation so i was interested to hear what lloyds would offer.

 

To summarise they are offering;

 

1) repayment schedule

2) cash settlement

 

i cannot afford the cash settlement which needs to be taken up within 28 days which is a shame as it is a good offer.

 

In respect of 1) above they have enclosed a consent order for my signature which suggests if two consecutive payments are missed then the claimant can enter judgement forthwith against me for o/s balance and costs.

 

Not withstanding the amount is incorrect due to charges (which they offerred to deduct in court) and interest (which they have not offerred to pay) I need to fully understand what this order means.

 

On the assumption I keep my job ... just started it .... while i do not intend to miss any payments it seems i only have to default on 2 and they could enter summary judgement against me.

 

Any advice before I agree to this consent order .... i have heard of a tomlin order before.

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Can you post the order (personal details removed) so we can see the exact wording.

 

Also, what documentation do you now have (agreement, DNs, etc)?


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Have they supplied you or the Court with anything, even vaguely like a credit agreement?

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The Proposed Consent Order from the Claimant

 

Content of Consent Order

 

1.as far as they relate to other parties all further proceedings be stayed upon the terms agreed by the parties hereto and set forth in the schedule save for the purpose of enforcing the said terms for which purpose the parties be at liberty to apply.

 

 

Schedule

 

1. the defendant agrees to repay the claimant the sum of £****** by monthly installments of £***** commencing within 1 month of the court approving this order and monthly thereafter,

 

2. that upon the Defendants default of two consecutive payments of the repayment schedule the claimant be at liberty to enter judgement forthwith against the defendant for the balance outstanding at that time plus costs.

 

3. that the above terms shall be in full and final settlement of all claims that either party shall have or may have against the other arising out of the matters in this action and this action only

 

 

Notes:

 

The amount needs to reduced to reflect both charges and interest.

 

The court stayed one month to allow us to reach settlement.

 

The have offered a cash settlement but a cannot afford this and I only 28 days to find this.

 

They are saying that if both parties can agree a settlement then no further proceedings will be taken and the matter can be concluded by including the terms of settlement into a consent order. this will have the effect of pernmanently staying the court proceedings whilst the terms of the settlement are maintained and avoid a potential CCJ being registered.

 

 

 

Questions

 

Given I have just started a new job, the uncertain economic climate, and I only have to miss two payments for things to be escalated I am a bit worried about agreeing to this and it will take me a LONG time to repay it.

 

They seem very willing considering all the legal costs they have incurred and I wonder if i have missed something.

 

The judge was pretty adamant they would win if it went to trial and he was pretty genned up.

 

I should have asked his views on the copy CCA at the hearing but did not get a chance.

 

They are even happy to consider lower repayments if i cannot afford their proposals.

 

I will try and post up the copy agreement I have.

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Have they supplied you or the Court with anything, even vaguely like a credit agreement?

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im really sorry have no knowledge on the consent order so wouldnt want to say anything to distort what you have to do legally

 

wish you well, all the best maz


Im happy to help with support and my own thoughts, but if I offer any thoughts to your problems please take it as from my life experience only and not of any legal standing. Always take further advice from the legal experts in your final action.:)

 

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As regards Default Notice, again technically this in invalid as it includes c 10% in charges/interest but they would only be requested to re-issue a correct one.

Views?

 

Not really – they’ve terminated the agreement by demanding full payment of the balance. They can’t reissue you with a default notice because there is no agreement to default. This is not a technicallity.

 

Hope someone comes along with a bit more advice, I know what I would do but I don’t want to give you bad advice.

 

Good luck.

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BTW the t&c’s they have given you a copy of are not on the back of your application because they clearly say ‘Bank Copy’ in the top left hand corner. So the 2 documents aren’t linked.

They would really need to produce the original as the copy they have provided isn’t acceptable. That along with an invalid default notice gives you a very good chance of getting the claim struck out.

Why don’t you pm x20 or Andyorch or PT for a final opinion before you concede.

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Thanks for your response ... been away for a few days ... need to get a response out on monday really

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It’s up to you really - but from what I’ve read then an invalid default notice really means its game over for them – they could claim the amount in arrears as indicated in the default notice but they would need to start a new claim. At that point the enforceability of the agreement comes into question and you can argue that the 2 documents aren’t linked and the original needs to be produced.

Can you get a little more time from them before you need to sign?

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