1st credit

[rooferboy03]

Hi all, I am a newbie to these forums so lease forgive me if i don't make any sense.

My problem is i have received a statutory demand from 1st credit for a credit card

i am a home owner so presumably they will go after the house which i must add is almost in negative equity. should i ask the county court for a set aside straight away or should i send a cca to them and just pretend that the stat demand was not receivedas it was sent by normal post and not signed for by me or anyone else in the house.

I did have a payment arrangement with them but as i did,nt have the money for the second payment the dd was cacelled, when i realised what had happened i telephoned them to re-instate the arrangement but they would not have any of it. It was full payment or nothing!!

They have been calling me constantly for weeks now but i have ignored them,presumably they have been trying to get hold of me to verify that i received the stat demand but obviously i dont wish them to know so i wont tell them.

The original debt was with citifinancial europe ltd if that helps.

Any advice would be much appreciated

Thanks

[Jamesx81x]

Hi

 

It is possible to claim you did not receive it as they did not send it recorded delivery.

 

Never talk to them on the phone put everything in writing.

 

Send them a CCA request by recorded mail. Very unlikely that they will have a copy of any agreement or default they never do. If this is the case let it go into default then they are legally not allowed to pursue any monies owed until they produce what you have asked for. If they do then reoprt them to OFT.

 

In the unlikely event they do have a copy, let them take it to court and issue a counter claim. Put in the fact they would not let you pay by installments, the courts will only make you pay what you can afford anyway.

 

1st credit are just weasles who were all bullied in their childhoods. Wouldnt worry to much about them.

[Lilythepink]

I received a sd from 1st credit/Connaught Collections on 29th by post through my dmp Payplan. I CCA'S them and got a reply from Conaught agreeing to set aside, and will not be attending court.

I am going to court anyway and am going to claim the costs from them.

I am worried, but with the support of the forum, I am feeling much more confident, that is why I am replying to your thread.

There are loads of people on here who will help you...

[sillygirl1]

I bet you they will not turn up - just cause they say they are not going doesn't mean it.... at least you have found the forum to hep you.

 

Just give us a shout when you need help with the costs etc, they won't be happy but they shouldn't go issuing SDs without backup....

[surprise]

If you do a search on 1st Credit you will find 100's of threads on 1st Credit and Statutory Demands. I'm another one going through it, case comes up 12th December, not heard whether they are attending yet though.

 

You really need to get a CCA request sent off tomorrow if you can, recorded delivery, enclose P.0 for a £1.00 - not sign anything though - just type your name. Recorded Delivery.

[rooferboy03]

I received a sd from 1st credit/Connaught Collections on 29th by post through my dmp Payplan. I CCA'S them and got a reply from Conaught agreeing to set aside, and will not be attending court.

I am going to court anyway and am going to claim the costs from them.

I am worried, but with the support of the forum, I am feeling much more confident, that is why I am replying to your thread.

There are loads of people on here who will help you...

 

 

Thanks for the info

The thing i'm wondering about is weather to act on the SD . of course if i do that would give the game away that i received it.

I think what i will do is send for cca and see what the outcome is.

Do you think that is the way to go?

Thanks

[bladeboy]

Go and have a look in the legal issues section. Thete are some very good post on SD's

 

I am in the same boat and have decided to swear in a set aside.

 

You could ignore it and claim that you never received it and the Insolvency Regulations are very clear about how one should be served i.e by hand.

 

Going by the current court fees and all other associated expenses, it will cost a creditor about £1,200 to petition for your Bankruptcy and then they lose all control of the debt, the Official Receiver then gets control and he's paid before anyone else is!

 

Ask yourself, why would a creditor want that?

[surprise]

The more people that go and swear for a set a side against 1st Credit the better. The first thing the Court Office asked us when was it served. They are issuing these like confetti and are using it as an abuse of process. I think you should forget about giving the game away you need to go and get it sworn and you also need to ask them for a copy of the credit agreement.

[enamae]

I was under the impression that you should never ignore a statutory Demand. If you do they can get a judgement by default, and if the amount owed is over £750.00 they can then apply for bankruptcy.

You normally have I think 18 days from the date served, and delivery can be by first class post.(this does not have to be registered for them to have proof of posting).

Also denying that you received the SD is an offence.

I'm sure someone will correct me if I'm wrong.

[42man]

Rooferboy....please have a read of these...I would always sey never ignore a stat demand....you've got 18 days to set it aside....If you need any help please SHOUT !!

 

You can find the forms here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/164580-capquest-sd-please-help.html?highlight=chezza

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/164223-capquest-stat-demand-bankruptcy.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/162646-urgent-help-needed-1st.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/151427-miss-muppets-daughter-1st.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/116591-1st-credit-stat-demand.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/151149-help-pls-process-sd.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/103839-cca-1st-credit-connaught.html

[42man]

Some good and correct advice posted above mine....

 

And bear in mind that 1st Credit/Connaught will follow through with BR

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/154693-1st-credit-connaught-bankruptcy.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/104409-bankruptcy-order-twice.html

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/146718-urgent-1st-credit-bankruptcy.html?highlight=littlewillie

[Lilythepink]

Rooferboy

Go by what the forum is telling you, Payplan are asking me to consider bankruptcy, but I would lose my job, and that is no use to anyone!!!

I wouldn't ignore it because I am sure they have some way of just turning up and making you bankrupt......

You will be fine though if you take these guys advice:D

[Jamesx81x]

Another thing to be aware of,

 

1st credit are known to read the posts on this forum so just be careful what you write and dont give too much information away or they will use it against you.

 

As i said! Theyre weasles

[rooferboy03]

Hi All

Thanks for the encouragement & advice, I have today posted the cca request and tomorrow I will go to my local court and sort out the set aside issue.

I was wondering though what it actually entails and what issue it should be based on and who I should see when i get there.Any info much appreciated as I am a bit aprehensive.

Thanks

[42man]

Roofer...you have got 18 days to set aside (18 days from the date you received the claim form)....PLEASE read the links I have put above....you fill out forms 6.4 (set aside form) and 6.5 (affadavit). You need a substantial dispute to get it aside, whether it be non production of a CCA, no defaults in the prescribed form, non production of statements for the duration of the agreement (excessive charges), or an abuse of process...try ringing Mr Silcock at 1st Credit....you will never get through, log the calls and bear this in mind - A statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of The insolvency Rules 1986.

This means that if the statutory demand doesn't give the name of a person you can speak to then it is not valid. If you try to contact the named person and they won’t put you through then it is also invalid. -

 

Once you have filled out the forms, take them to your local county court (you need to call them first to find out if they handle bankruptcies - if they don't they should be able to tell you the nearest county court that does) ask the court staff to 'swear in' your affadavit (this is usually free), and await a court date.....you could get your affadavit and accompanying forms (CCA request form) sworn in at a local solicitors (which costs £5) or at a central London court (costs £12).....then you should get a hearing date for about 4-6 weeks after you submit your 6.4 and 6.5

 

You submit your costs 24 hours before the hearing....

 

You can claim £9.25 per hour as LITIGANT IN PERSON COSTS

40p per mile

Parking

Postage

 

So for example you might put 10 hours of research into Insolvency Laws @ £9.25 pr hr

10 hours of research into the Consumer Credit Act 1974 @ £9.25 pr hour

etc etc....

[42man]

You don't need to go to the courts to get the forms they are both here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

You will need to go to the court with the forms when they are completed and within 18 days...

[rooferboy03]

You don't need to go to the courts to get the forms they are both here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

You will need to go to the court with the forms when they are completed and within 18 days...

Hi 42 man

filling out my affidafit,what should i use as my defence to get set aside as i didn'nt send cca until after i received stat demand.

any help much appreciated

[rooferboy03]

Hi guys

is there anybody out there who can help with filling out my affidafit as per post above, really need to get it sorted today.

any help much appreciated.

[42man]

OK can you give me an hour or so RB ?

[rooferboy03]

No Problem

Thanks

[42man]

The alleged debt is totally disputed.

 

The alleged creditor has not supplied a copy of my Consumer Credit Agreement with the prescribed terms.

 

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 XXXX. via guaranteed delivery on the (insert the date on the recorded delivery slip here ) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take copies one for the court and one for you ) – to date they have not sent any copies of any Consumer Credit Agreements and are in default of that request under section 78 (1) of the Consumer Credit Act

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

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(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;

 

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)

 

 

 

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

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

If the agreements are non existent, 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 demand was issued

The alleged creditor have not provided any default notices in the prescribed manner

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 alleged creditor has not supplied any statements for the duration of the alleged agreement, nor any notices of assignment.

 

The Defendant denies that he is liable to the Claimant as alleged in the demand. 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 that 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

I believe that this demand is frivolous and unlawful as it was delivered by 2nd class post, (according to the Insolvency Service minimum service is by registered post - unless substituted service has been granted which it appears has not been.) and feel that the Insolvency service is being used as a debt collection tool when the account is disputed entirely.

 

I quote - Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly..' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

 

In light of the above information, I request the judge sets aside the demand and gracefully request he/she order payment of my costs by the alleged creditor.

 

As a lone parent/low income family with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt

[42man]

Use the affadavit template from here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

(form 6.5)

 

Have a good read and do your research into what is being said here....if you're not sure of anything let me know....

 

You need to get the affadavit, witnessed at the court (usually free unless it is a central London court) - or a solicitor will do this for around £5

 

And your LITIGANT IN PERSON COSTS need to be submitted 24 hours before the hearing date (but keep us posted if/as/when you hear back)

[42man]

You obviously need to read VERY carefully, try and understand what is being said, do some research and edit as required....

[rooferboy03]

Thanks 42 man

will have a good read and get back to you

I take it i will have to type all this rather than paste it.

Rooferboy

[42man]

You can cut and paste it....but might be worth changing the font....and it might be a good idea to renumber it too...