County Court Claim

[creditcardmug]

Hi shelbs, you need to start your own thread on this in the legal forum to get help, when in the forum click new thread at the top

[Gunner77]

Hey Pank cheers, for that. I think that HFO/Turnbull may have written to me, will find out when I get home. If this goes all the way rest assured I will be pursuing HFO for maximum costs and inconveniance.

[Gunner77]

hi guys. hfo turnbull have sent me copies of old statements and a copy of my application card. it has a declaration section which states theconsumer credit act 1974. but no mentiion of interest rate etc. just a copy of the rapid replly card. what can i do? is this valid? thanks.

[DonkeyB]

It would be useful if you could post it up, without your private details or bar codes. It it's pre-2000 then it's probably a duffer - just a plain old application form.

 

If this is the case, it may be worth writing to them to say that have failed to comply with your CCA request. If they insist it is a credit agreement, then they won't get far in court (though it won't necessarily stop them taking you to court).

[Gunner77]

Sorry not got a scanner, but it is basically an application card, which is dated January 2005. It is just one of those credit card applications and doesn't mention any APR etc. Just states that I am agreeing to consumer credit act 1974. Also the copy statements they have sent claerly show all the charges, late and over limit.

 

What shall I do? Does this count for anything? Thanks.

[atwozee]

Does the application refer to terms overleaf or on the reverse?

[Gunner77]

It says : Declaration: Credit Agreement Regulated by the consumer credit act 1974. I am applying for a Visa credit card, PIN and cheques issued by Barclays Bank Plc, subject to status. I have read and agreed to be bound by the Terms and Conditions(T&C's) (NOT ENCLOSED).

 

It then continues with how my information may be used, but no mention of rate or copy of T&C's.

 

Is it proof against me? Is it enforceable?

 

Thanks.

[Gunner77]

Does this copy of my initial application vaild? Does the fact they have only provided it now make it valid? Am I in trouble? Thanks, it's just that they now have me a little worried. Thanks.

[atwozee]

The agreement must contain all of the prescribed terms – they can’t be referred to in another document such as a leaflet unless you actually signed that document as well – the only way to really know is to view the original application – but from what you’ve said it doesn’t seem as though the prescribed terms are contained within the document you’ve signed.

[Gunner77]

Hi Atwozee no they're not. It's just a copy of one of those cards you get when you apply for a Credit Card. The initial application not even an A4 document. No T&C's or anything. What should I do now? Should I enter into dialogue with them or leave it and let it get to court? Thanks.

[atwozee]

Hard to advise without seeing it – can you take a digital photo and post that up?

[Gunner77]

Hi it is just a Rapid Pely Card and says the following:

 

My name and address, plus my emaployment status, salary, contact number and DOB.

 

On the other side it says:

 

Declaration

CREDIT AGGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974

I am applying for a VISA credit card, PIN and cheques issued by Barclays Bank PLC, subject to starus. I have read and agreed to be bound by the Terms and Conditions (T&C's). I am uk resident who is at least 18 years of age and am not bankrupt. All the information provided by me is accurate. I authorise you to send me a VISA card with the terms stated in the enclosed T&C's. I am not an existing Providan or Monument cardholder.

 

IMPORTANT - YOUR INFORMATION

I have read and agree to Condition 21 of the terms and conitions which sets out how my information will be used.

 

This is a credit agreement regulated by the consumer credit act 1974, sign it only if you want to be legally bound by its terms.

 

HOPE THIS HELPS. AM I IN TROUBLE NOW? IS THIS ENFORCEABLE? There is no copy of the relevant T&C's.

 

Turnbull Rutherford state that they have enclosed a copy of the signed agreement? Is the above a signed agreement, which is enforceable?

 

Thanks.

[atwozee]

From what you have said then it doesn’t look to be an enforceable agreement – they will need to produce the terms and conditions they are relying on and they must be within the signature document and more importantly they must contain the prescribed terms if the agreement is to be enforced.

 

Have a read of this – it’s a pretty good guide to agreements and will help you make your mind up.

oft guidlines.pdf

[Gunner77]

What should I do next? The info sent to me wasn't sent by recorded post so I can deny even having received it. Also should I demand a copy of the signed T&C's?

 

Where does the above info leave my case? Surely HFO had to provide the info when i requested it? Thanks.

[atwozee]

They need an enforceable agreement

A valid DN

A full set of statements to validate the claim

A notice of assignment if applicable

Take a little time to read the OFT guide to credit agreements – it should help you to understand why they can’t enforce any old piece of paper – regardless of whether it says this is a consumer credit agreement.

Like I said – it looks like they don’t have an enforceable agreement.

Did you ever send a s78 request?

[creditcardmug]

You have filed your defence to their claim, they now have to decide whether to take it further, my advice is just to wait to hear something from the court.

 

Meanwhile keep reading all you can on here, to bring yourself up to speed

[Gunner77]

Thanks for the help and support. Can I just ask for advice as to whether any of you guys think, can confirm that what they have sent me is unenforceable? Also surely they should have provided this when I requested it and not now? Thanks.

[Pank]

Gunner, I had the same thing. Hfo sent me a copy of an application form. Have a look on my thread to see if it is the same one.

 

If it is then there are no prescribed terms, and no terms and conditions. and in my opinion unenforcable

 

Statement doesn't prove even the existence of an agreement, let alone be used in the enforcement of one.

 

If they have no enforceable CCA, then there is no debt, the CCA is proof of the contract, it verifies the legal relationship between a debtor and the creditor, without this document there is no relationship.

 

 

amend this as you see fit, and send recorded...

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

As you will be no doubt aware, the Copy Document Regulations requires that documents are easily legible and clearly the terms of the agreement are not easily legible, infact far from it. most of the document is blurred and cannot be interpreted and there are no temrs and conditions.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the application form is illegible and unenforceable, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

 

I hope this helps. Keep on the pressure.

 

Pank

[Gunner77]

Thanks Pank, will send this letter tonight. How did/are you getting on with your case? Thanks.

[DonkeyB]

I've just noticed that HFO claim to have bought the debt on 27/2/07. That was a Sunday.

 

Sounds like you have only a copy of an application form with no prescribed terms and no T&Cs. This won't necessarily stop them taking the case further, though, I'm afraid.

 

You might also want to have a little look at this thread.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/186571-solicitors-persuing-unenforceable-debts.html

Edited March 2, 2009 by DonkeyB
Added a bit

[Gunner77]

Cheers for that DonkeyB - so is it worth sending the letter which Pank suggests or just hold fire sit tight and wait and see what HFO/Turnbull do next?

 

Is it just a case of waiting to see what they do next? OH and another thing HFO/Turnbull send everything by normal mail not recorded, so I can just deny ever receiving any of it. Also the more I think about it the more I am certain that a default notice was never issued. How important is this? Thanks.

[DonkeyB]

You'll lose nothing by sending it, but I doubt

(a) you'll elicit any meaningful response, or

(b) it will change their actions.

 

A default notice is a vital part of any case they may present.

 

Wouldn't worry about the post issue - they'll just swear blind they've sent it. Remember, they have to prove things as they're bringing the action. Hate to sound pessimistic, but a lot of these outfits go to court knowing they have incorrect paperwork - they either make it up, or hope the judge is not familiar with the law.

[imran]

I would appreciate some urgent advice in complying with court order (3) below (claim against the Met Police for search / entry without a warrant) filing and serving draft directions! How do I!

thanks

Notice of Allocation or Listing Hearing To the Claimant

1. DISTRICT JUDGE XX has considered the statements of case and allocation questionnaires submitted in this claim and has decided that a hearing is necessary before a final decision about allocation can be made.

2. DISTRICT JUDGE XX orders you to attend at xx:xx on

the xx 2009 at xx County Court. Time estimate 30

minutes.

3. DISTRICT JUDGE XX orders the parties to file & serve

draft directions two days before the hearing.

[Gunner77]

Imran I think you need to start ypur own thread if you need help. Cheers.

[Gunner77]

DonkeyB - is it worth getting some professional help or will I be fine to continue as I am? Thanks. Anyone else got to this stage with HFO/Turnbulll? If so what was the outcome and was it easy to defend the case? Thanks.