S142 (1)

[tendogs]

Can any one tell me where I might find more information regarding S142 (1)? Has any one used it?

 

Cheers

Dogs

[rory32]

s142 (1) of what?

[tendogs]

Hi rory that would be Section 142 (1) Consumer Credit Act 1974.

 

142.—(1) Where under any provision of this Act a thing can be done by a creditor or

owner on an enforcement order only, and either—

(a) the court dismisses (except on technical grounds only) an application for an

enforcement order, or

(b) where no such application has been made or such an application has been

dismissed on technical grounds only, an interested party applies to the court for

a declaration under this subsection

the court may if it thinks just make a declaration that the creditor or owner is not

entitled to do that thing, and thereafter no application for an enforcement order in

respect of it shall be entertained.

(2) Where—

(a) a regulated agreement or linked transaction is cancelled under section 69(1), or

becomes subject to section 69(2), or

(b) a regulated agreement is terminated under section 91,

and an interested party applies to the court for a declaration under this subsection, the

court may make a declaration. to that effect.

[B3rty]

I think the Rankines tried this

[blind-as-a-bat]

unless i misunderstood a post by PT the rankines tried useing sec 78 which would account for there failure

 

But i could be wrong:confused:

[tendogs]

EEK! B3erty

 

They might have done but I think the section is valid non the less.

[tendogs]

I just wondered if anyone had used S142 (1) post CCJ. I've seen it sugested and quoted in the forum but I have not come across anyone who had used it.

[B3rty]

In the Rankine Judgement in para's 13-15 it mentions s.142 being used but the judge ruled that it could only be used where the creditors were making an enforcement order which they were not so a .78 default couldn't be enforced by s,142 by the debtor....( by this particualr judge!)thats my understanding anyway

[tendogs]

In this instance the claim was brought against me some time ago, long before I’d found CAG and the DCA received judgment by default. This was swiftly followed by a charge against my property. I want to fight back and I suspect that they do not have a credit agreement and I thought that I might use S142 (1) to that end.

[miffedpuppy]

Been there tried that got nowhere they hit you with CPR 13.3 (21 days is the limit)

[pt2537]

Been there tried that got nowhere they hit you with CPR 13.3 (21 days is the limit)

Southern District Finance -v- Turner confirms that you can apply to the court to allow you to submit a counter claim against the lender even after proceedings have finished, the coiurt must have regard for the CPR 3.9 checklist , as required by Sayers v Clarke Walker [2002] 3 All ER 490

 

in the alternative you may bring freestanding proceedings for a declaration and there is nothing to prohibit this

as for 21 days what Ball Hooks, quote Regency Rolls Ltd & Anor v Carnall [2000] EWCA Civ 37, this case confirms that the limit may be 30 days to setaside judgment but in addition up to 56 days is allowable

[tendogs]

Hi guys, thanks for the interest. If I understand pt there would be nothing to prohibit me from using section 142 to seek a declaration that a debt was not enforceable if I could demonstrate that a DCA did not have a properly executed credit agreement. Is that correct?

[miffedpuppy]

only trouble PT my CCJ was 4 yrs old

[pt2537]

even so, the enforceability of an agreement can still be challenged.

 

We have brought proceedings on a case where the debt is already subject to a CCJ and been successful

[tendogs]

Could you give me a hint about how you went about it or point me to some source material? Cheers

[miffedpuppy]

me too cos the agreement is defo unenforcable

[miffedpuppy]

PT any info on this please

[tendogs]

For all the usual reasons I allowed this one to slide. The position is as follows. A DCA has a CCJ and a Charging Order, I’m fairly certain that this is due, in part, to poor case management. I was certain that a good proportion of the court documents did not reach me; I know that this is the excuse of the hapless but there have been incidents of documents that ought to have been sent to me and Mrs Dogs under separate cover being bundled into one envelope and then franked with insufficient postage resulting in the documents arriving too late for me to make an appropriate response to the court. In this same case I received documents from the court for another case with a similar Claim Number.

Anyhow, as soon as I discovered CAG I sent both a CCA request and a SAR to the DCA. This was 11 April 08 for the SAR and 12 August 08 for the CCA request and the DCA has failed to respond to either of these requests, I suspect that having the Charging Order they felt they could ignore me. The solicitors acting for the DCA then made an application for a hearing to order me to sell my home, I understand that they were unlikely to obtain the order but they sent me a schedule of fees and I suspect that they wanted the court to award them costs.

It was during this process that I discovered the case management issues, I complained to the court and the case was transferred to my local County Court. I have received a Notice of Directions from my local Court and they have allowed 15 minutes for a hearing in 3 weeks time. I have taken Pete’s advice about using CPR 31.16 and sent the DCA a request for the credit agreement (I do not even know who the OC is) in the hope that I can take the argument to them. I was considering using S142 if, as I suspect, the agreement is not enforceable, I’m just not sure about the best way to go about it.

[pt2537]

Hi Tendogs

 

CPR 31.16 is only applicable in pre action cases.

 

you should use CPR 31.14 if they have already started proceedings

[tendogs]

Thanks Pete I'll get cracking on that.

[pt2537]

Thanks Pete I'll get cracking on that.

 

Erm Paul;)

[tendogs]

OK wrong apostle Any way my son's called Pete, my father in law and by brother in law are both called Pete as are my ex boss and by best friend. I can see no good reason why you can't change your name:D

[tendogs]

Just a thought, can I use their failure to respond to my CCA request for documents to compel them to produce the documents?

[UK26]

this is interesting, so in my case of HFO Services Limited – if my appeal is denied, I could then file a claim under S.142 and block HFO taking enforcement??

[patrickq1]

sounds like tendogs is dealing with i suspect HFO dogs .....as for pete tendogs i think it better you change your name to paul then pete an pete an the other petes can contact paul and see if petes available to answer UK plea seems he got a really raw deal what u think pete

patrickq1 n pete lol

for pete's sake