Is this agreement enforcable?? help

[donnyboy75]

hi all,

 

I have been following things on this site for a while and have used the information online wisely

 

1. I recently received a response to my CCA request, they sent what they claim is the the signed enforceable CCA..

 

I have uploaded this can you confirm if this is enforceable and is what is now classed as a genuine and satisfactory CCA please.. thank you.

 

 

also

 

2. I have recevied a Stat Demand today, posted through my door, I sent the CCA request to the DCA (as mentioned above), they supplied some but not all the information, ie just 7 months worth of debits and credits, they have sent me the pre mentioned agreement. I also sent an SAR to the original credit card company and they have not responded.. therefore at this time should I:-

a. write back to the DCA and request they send me a full statement of debits and credits during the entire period?

b. write back to the DCA and inform them the account is in dispute as they have failed to provide all the info to me

c. write back to the credit card company and inform them I am still waiting on the SAR

d. request the stat demand be set aside due to points a to c

 

Also just for reference I have been paying the DCA on a monthly basis by standing order and this is also the second stat demand they have sent (i cocked up the setting aside thing last time but the DCA did not move on it for some reason!)

 

Please let me know what you think, I am in a panic before xmas

[B3rty]

I assume this is First Credit?....if so their SDs are sent out to intimidate however the agreement is not enforceable no prescribed terms and a fairly common format for MBNA Credit Cards arround that time...

[Von Greenbach]

Also just for reference I have been paying the DCA on a monthly basis by standing order

Not anymore if I was you.

Please let me know what you think, I am in a panic before xmas

I think you should cancel your SO and request a paying in book, there's no way I'd let any DCA have my bank details no matter who they are.

[donnyboy75]

Hi, you are correct this is 1st credit/connaught/mbna.

 

The question is where do i go from here based on the fact I have had a stat demand..

 

what letter do i send to the DCA if the agreement is not enforceable?

what do i send to the court to have this set aside (obviously incorporating what ever letter i send to the DCA)?

 

and once again just to confirm MBNA have failed to response to the SAR (which I will include in my court docs for setting aside)..

 

Advice on this welcomed and really urgent... thanks dan

[B3rty]

Look at these thread which has all the info you need...

 

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

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/165140-received-statutory-demand-capquest.html?highlight=statutory+demand

 

Look at post 3 in the above as this has links to other Won SDs

 

Is this an actual SD or just a threat.....personally with that CCA they dont have a leg to stand on but you need to act fast

Edited December 18, 2008 by B3rty

[donnyboy75]

so what do i send to the DCA to inform them that i feel the debt is not enforceable and why do i feel it is not?... what are my reasons?

 

Also what do i put in my affidavit? I know i will mention that the credit card company have not sent the Subject Access Request therefore it is in dispute but what else about the non enforceable agreement?

 

sorry i know it seems like i need handholding but i am in a panic and need to get this affidavit drawn up so i can at least forget about it over xmas!

 

ps. i have received the SD so they are trying their luck!

[42man]

OK...you need to fill out forms 6.4 (set aside form) and 6.5 (affadavit)....you can find electronic versions of these here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

As you probably know you have 18 days from the date you received the demand to set aside, once you have filled out the forms, you need to take them to your local county court (but check first to find out if they handle bankruptcies) if they don't handle them as not all county courts do, then they should be able to tell you the nearest county court that does. When you take the 6.4 and 6.5 (and any accompanying paperwork) you need to ask the court staff to 'swear' in your affadavit (which is usually free from a county court, £5 at a local solicitors and £12 at central London courts)....

 

1) I do not admit the debt because the existence/enforceability of the alleged debt is in dispute:

 

The respondent alleges that the applicant is indebted to it in the sum £XXXXX, being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 (“CCA”). It is further alleged that the debt was assigned to the respondent from (original creditor if known) on (date if known). The applicant will say that the statutory demand should be set-aside upon the following grounds;

 

a) The applicant does not admit that the debt exists. The respondent is put to strict proof that that the alleged agreement was entered into between (name of original creditor) and the applicant; and at what place and on what date and upon what terms.

 

b) In the event that the burden of proof is discharged as set out in paragraph 1) above and entirely without prejudice to the same, the applicant does not admit that the debt is legally enforceable. The respondent has disclosed a copy of the agreement under which it alleges the debt to be owed in response to a request under CCA s.77. The alleged agreement is unexecuted and devoid of CCA prescribed terms and accordingly is unenforceable as a matter of law. The alleged agreement is exhibited hereto as ‘B’.

 

I refer to the Consumer Credit Act -

 

CCA RULES FOR 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 – see Q1.21.

 

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.

 

c) The respondent is put to strict proof that the alleged debt has been properly assigned.

 

d) The respondent is put to strict proof that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.88(1). Further or alternatively, the alleged debt contains sums levied by way of penalty charges which the applicant will say are contrary to common law. Accordingly, any default notice which may have been served could not have contained accurate particulars of the outstanding debt and would therefore have been defective and invalid.

 

I refer to -

 

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.

and

• 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
  

e) The applicant has potential grounds of action against the respondent for damages in respect of the applicant’s pain, suffering and loss of amenity caused by the respondents excessive harassment and that of (name of original creditor). Accordingly, any proceedings initiated by the respondent may be subject to a counterclaim.

 

g) The respondent has chosen to serve a statutory demand by ‘regular’ post in full knowledge of the fact that the debt is subject to an ongoing dispute. In view of this, and of the matters pleaded above, the applicant avers that the service of the statutory demand is demonstrably frivolous, intimidatory and an abuse of process.

 

I refer to -

 

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

 

Accordingly, the applicant respectfully requests that the statutory demand be struck out or set-aside. Further, the applicant invites the court to make an order of costs in favour of the applicant in respect of the reasonable cost of preparing this application and of attending any hearings in respect thereof.

 

I refer to -

 

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

 

I make this statement with the sworn belief that all facts stated are true.

[42man]

As for the DCA, then send them this by recorded

 

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

 

 

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request and I am therefore advising that the matter is now in dispute . Whilst the matter is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else.

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies including any defaults. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

 

[42man]

I suggest spending some time doing some research and if you aren't sure of anything let me know, you'll have to edit the above (affadavit) and number it correctly.....keep us posted !!

[42man]

Your claim for costs as LITIGANT IN PERSON should be submitted to the court 24 hours before the hearing