CitiFinancial/1st Credit SD

[42man]

Once again i'm gutted that it wasn't set aside, The consumer credit act states clearly, there is HIGH court law to stand by this...and they are starting to send representatives to the court too....did you get costs at all ?....

[pt2537]

Hi all,

 

Had my hearing today and the judge didn't set aside the demand as I had hoped.

 

He felt that as I had already had an agreement in place with Citi and they passed the debt on to 1st I had already acknowledged the debt.

 

He wasn't interested in the fact that I haven't received a copy of my CCA or never received a notice of assignment or default notices.

 

On the plus side he was very unhappy that 1st had said in their witness statement that they had refused all payment offers - the look on his face when I produced a letter from them agreeing to my offer said it all and he made it clear that they should stand by it as they had already agreed!

 

Their legal representative (not from LCS I hassen to add) also looked pretty shocked when the letter was produced. It effectively showed that they have lied in their witness statement but unfortunately wasn't enough to get the demand set aside.

 

I will now have to wait to see what they do next although he did advise that they probably wouldn't get anything if they attempted bankruptcy in light of their acceptance of my offer.

 

Thanks to all from your help and Happy New Year.

 

Did you direct the judge to the relevent sections of the CCA that said that they should not be seeking enforcement while in default? if a petition for bankruptcy isnt enforcement then i dont know what the hell is?

 

Did you direct the judge to section 87 & 88 CCA 1974 in relation to defaults?

 

You need to make sure that you do this, and draw the judges attention to the relevent things as many judges dont know their arse from their elbow when it comes to the CCA

[Digitalburnout]

42man, no costs were awarded to either side. They had applied for just over £300 costs and the judge refused to award them despite protest from their representative (Legal Practice Clerks Limited) which said it all really.

 

pt2537, the judge wasn't interested in anything I had to say regarding the CCA.

 

I raised the issue several times but he repeated that as I had an agreement in place with Citi that I had acknowledged the debt and lack of the CCA didn't have a bearing on the case.

[pt2537]

42man, no costs were awarded to either side. They had applied for just over £300 costs and the judge refused to award them despite protest from their representative (Legal Practice Clerks Limited) which said it all really.

 

pt2537, the judge wasn't interested in anything I had to say regarding the CCA.

 

I raised the issue several times but he repeated that as I had an agreement in place with Citi that I had acknowledged the debt and lack of the CCA didn't have a bearing on the case.

Hmm, this does not sound logical, did you refer the Judge to Wilson -v- First County Trust Court of Appeal ruling , para 26 Sir Andrew Morrits judgment? the judge cannot ignore this as the Vice Chancellor states that where a lender fails to ensure they comply with the requirements of s61(1)(a) then they are deemed to have gifted teh money to the person.

 

My guess is that you simply didnt have the Ammo to down the other sides arguements. however, all is not lost, you have options,

 

You can seek an injunction against worst credit from enforcing the debt while in default of the CCA request, the authority for this is para 16 of HHJ Simon Browns Judgment in Rankine and Amex

 

the otehr option, is to seek disclosure of the documents and bring an action before the court for a declaration pursuant to S142(1) CCA.

 

The fact that you have made payments or have acknowledged t he debt is meaningless, the fact is the CCA allows consenting enforcement, so you could simply say that you have exercised your right to cease payments as you no longer consent to pay a debt which you have discovered as being unenforceable

 

these are just my thoughts, and i am a wee bit worst for wear thanks to the Famous Grouse

[pt2537]

taken from s173 CCA 1974

(3) Notwithstanding subsection (1), a provision of this Act under which a thing may be done in relation to any person on an order of the court or the Director only shall not be taken to prevent its being done at any time with that person’s consent given at that time, but the refusal of such consent shall not give rise to any liability.

[ncf355]

PT -

 

Interested in this , but for some reason my brain is struggling with the above text, can you put it into english please?

 

(sorry)

[ncf355]

actually,

 

scratch that, I see know that it backs the previous post up that just because you have made payments in the past, this does not make the agreement enforceable, right?

[pt2537]

actually,

 

scratch that, I see know that it backs the previous post up that just because you have made payments in the past, this does not make the agreement enforceable, right?

correct, you can consent to enforcement but can withdraw that consent without admission of liability

[ncf355]

PT,

 

what carries the higher weight, Wilson or Rankine?

 

As Rankine seems to have ridden a steamroller over everything decided at Wilson, so if Wilson is a higher court, does that automtically negate the opinions stated at Rankine?

[pt2537]

PT,

 

what carries the higher weight, Wilson or Rankine?

 

As Rankine seems to have ridden a steamroller over everything decided at Wilson, so if Wilson is a higher court, does that automtically negate the opinions stated at Rankine?

Wilson would always carry greater weight, but, people do not take rankine in the light that it should be taken, Rankine did nothing to alter the form and content of regulated agreements

[ncf355]

Hi,

 

thanks, could you explain a little more as to why it did nothing to alter things?

 

Was it purely that the Rankines were badly prepared?

[pt2537]

In my view, Rankine only dealt with the matters such as the ability of the court to make a declaration pursuant to s142 and the circumstances surrounding them.

 

It dealt with the "true copies" provisions given that rankine sought to say that the true copies they recieved were not true copies, lets not forget, from the judges view their case was poorly presented and ill prepared and incoherent

 

it also dealt with the provisions of cancellable agreements

 

buut it did nothing to change the fact that statute prescribes the form and content of a regulated agreement

[ncf355]

Thanks PT

[Digitalburnout]

pt2537,

 

I certainly had the arguement to beat down the other side but the judge wasn't prepared to listen.

 

I guess I need to seek professional advice with how to proceed the an injunction?

 

Thanks again for the help.

[pt2537]

Dear Sirs

 

I respectfully requested that you supply me a copy of the credit agreement upon which you based your demands for payment. To date you have failed to supply this information despite the statutory fee being paid with the request.

 

Therefore, pursuant to s173(3) Consumer Credit Act 1974 i no longer consent to enforcement of the alleged agreement until such time as a signed copy is produced showing liability for payments and the contractual provisions associated with it.

 

Should you fail to comply with this request, i am advised that i would be able to seek an injunction restraining you from any enforcement until such time as you provide a properly executed agreement which bears my signature. the authority upon which the injunction is based is para 16 of Rankine v Amex and five others, which i am sure you will be aware of.

 

I would respectfully ask that you respond to this letter by no later than 4 pm on XXXX

 

I look forward to your response

 

 

just a thought

[ncf355]

PT -

 

Looking at Para 16 of Rankine, it appears the judge is stating that if the agreement is terminated (as in, S87/88 properly followed, termination letter then issued), that S78 bears no weight to prevent action action by a creditor

 

This being the case, could any creditor just terminate the agreement and then rely on this ruling to avoid the consequences of s78(6)?

[pt2537]

that is correct, s78 falls under the heading of Part VI Matters Arising During Currency of Credit or Hire Agreements

 

the key is during the currency so once the agreement ends thats it so does an entitlement to the documents

 

however there are more than one way to get the docs you need, the dpa or CPR provide rights to access to documents essential to your case

[ncf355]

Thanks for that

 

But on the other side of the coin, we are sure that if they issue an invalid DN and then proceed to terminate, they cannot then rectify that issue and so lose claim to the balance?

[Digitalburnout]

just a thought

 

Thanks pt2537, will give that a try.

 

I still hope that having the letter 1st Credit sent agreeing to the payment offer will carry some weight. Like I said before the judge wasn't very impressed they had failed to include that fact in their witness statement.

 

He even told me to look after it as it was very important. I have made various copies stored in various locations to make sure it is.

[Digitalburnout]

My apologies for digging up an old thread however having paid the £12 mentioned above every month for the last 5 years + I've now been sent a letter threatening bankruptcy proceedings again!

 

I have moved back to my parents home having had the flat I was living in repossessed back in 2010 and own nothing of value, don't even have a car as I go everywhere via public transport.

 

I still have their letter agreeing to the £12 payment so I guess I'll just have to show the judge again if they do decide to go down the court route again!

[Digitalburnout]

Good morning all, I've received another letter this morning still suggesting bankruptcy proceedings are being considered.

 

They are adamant this debt hasn't been paid yet the amount owed has reduced from their previous letter by the £12 a month I've been paying them for the last five years plus.

 

They are now saying that if a repayment plan isn't agreed they will pass to Connaught Collections "to consider issue of a statutory demand"

 

They would like this repayment plan to be direct debit!

 

To be perfectly honest if they wish to go down the bankruptcy route they would be helping me out because I have no assets and won't be having any for the foreseeable future and obviously they won't receive a penny more.

 

On another note, when this original started five years ago they were asked to supply my credit agreement and I still haven't seen it.

 

Any advice would be grateful received. Thank you.

Edited June 19, 2014 by Digitalburnout