Arrow/evershers CCJ+CO over old MBNA debt

[r&b]

reggie these guys r far more experienced than me, but my thoughts at this point, for what its worth, would be to use the CPR route as u need to get your set aside application in asap (if thats the way u r goin) and from what ive seen thats the only way to get a speedy answer (or not in some cases, but at least it shows the judge you ve been trying and they have been obstructive, ergo more strings to the bow), but i would definitely bow to their greater knowledge, as im only talking from advice i ve been given for my own 'tribulations' as you ve seen. hopefully they will be back to advise.

[reggie76]

Yeah I agree, thanks

[reggie76]

okay spoken to CAB, taking legal advice- knew taking out this cover on my home insurance would help!, reading everything I can get my hands on, reported creditor to the OFT for the charging order, best of all I found this site, so here comes my set aside application!!!!

[palomino]

I'm interested in this, palomino, as for me a dispute is a status and not something that happens because you send a letter saying you are in dispute.

 

Sorry, but default is the status. It's a fact and it's unarguable.

 

Whatever your views if you send a letter telling them you dispute their right to enforce repayment then you are clarifying any possible confusion.

[car2403]

Sorry, but default is the status. It's a fact and it's unarguable.

 

Whatever your views if you send a letter telling them you dispute their right to enforce repayment then you are clarifying any possible confusion.

 

I think we can hopefully agree to disagree on this one.

[reggie76]

I'm confused!!!

[reggie76]

Guys help me out. I'm getting conflicting advice!

[car2403]

The issue with taking advice from a forum like this, reggie, is that advice is based on differing opinions and experience. It would be for you to decide how to conduct your own case, taking those views in to account, then doing the thing that makes you most comfortable.

 

All I can say is that I firmly believe that the dispute arises from the failure to comply with the request for information in the prescribed timeframe. Sending a letter outlining that failure is irrelevant to the fact that they have still failed. I also don't see the benefit to be had from doing that, personally, as the creditor is well aware of their legal obligations and duties - whether you point out they haven't behaved as they should have doesn't mean you aren't in dispute with them, therefore.

 

On the other hand, there's no detriment in sending such a letter

[reggie76]

Thanks Chris, your input is always appreciated.

 

As I have previously mentioned I would feel a lot more comfortable if they came back to me and said we do not have a copy of your agreement.

[car2403]

Thanks Chris, your input is always appreciated.

 

As I have previously mentioned I would feel a lot more comfortable if they came back to me and said we do not have a copy of your agreement.

 

Agreed, but I suspect they won't.

[reggie76]

So if they do not comply with my CCA request and have not answered my questions regarding do they have a true signed agreement and I apply for a set aside using no CCA agreement is available, when we go to court if they provide one will the Judge question why they did not advise or provide me with a copy as per my request. i.e. could it rule against them?

[car2403]

It won't look good, that's for sure, but it would probably mean the CCJ/CO would remain.

[reggie76]

Interesting- Copied from another thread:

 

A letter from the OFT outlining sec77-79.

 

Consumer Credit Act 1974 (‘the Act')

Our Ref: **EDITED**

 

Thank you for your email received on 31 March about your enquiry into the Consumer Credit Act Sect 77 & 78.I apologise for the delayed response.

 

The general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

If you would like to make a formal complaint. Please fill in the attached complaint form.

 

Thank you again for writing to us.

 

Yours sincerely

 

 

Olu Ademolu

Markets and Projects

Enquires and Preliminary Investigations Centre

Edited April 10, 2009 by car2403
Removing letter references

[car2403]

The responses to these requests are spurious - creditors hide behind the regulations (which is outlined sufficiently in the above letter, so I won't quote them here again - suffice it to say that the OFT are right in their view) so they don't need to disclose the fact they can't enforce the agreement. They then go on to refuse to enforce, instead passing the debt to even more spurious DCA's that attempt to collect on it.

 

All this leaves the debtor in a quandrary - seemingly, the only way to force disclosure is to take Court action, (or defend it, in your case) but that could be setting you up for a fall should they turn up with the agreement and it being fully enforceable.

 

The question you have to ask yourself, then, is how likely is it that they can provide the agreement, but are simply stalling for time. Ironically, I'm in this process with Cap 1 (although I haven't started a thread on it yet, but it's following the usual Cap 1 process) and I'm about to lose my temper with them. This is the relevant paragraph in the next letter that I'm sending them, though;

 

I find your reply perplexing though, in that you seem to be relying on legal “mumbo-jumbo” to justify the previous reply that you sent me without even considering the content of my latest letter to you dated 24 March. I also cannot see the circumstances in which you would rather continue to correspond with me regarding your compliance with that request, based on your previous reply, when surely it would be much more straightforward to supply me with a true copy of the original agreement, along with my signature and the prescribed terms, to allow me to fully understand my obligations under the agreement.

 

For instance, how can you say “your account status remains open and active and up to date and the balance currently due and payable is £757.71” when you have failed to fully respond to the questions asked in my last letter? How can the account be “open and active”, “up to date”, “have a currently owed balance that is payable” and how can you state that information regarding the account is being shared with credit references agencies, if you are unable to show I actually agreed to the terms you are seeking to rely on? Upon what information is this statement based, exactly? I would also like to know how you could “defend any application may bring against [you]”.

[reggie76]

Possibly interesting update.

Having checked all my paperwork from the courts I have no record of a final charging order being made only an interim charging order.

Checked the land registry and it shows Arrow as an interested party but only with an interim charging order, the court apparently had a hearing in April last year so I don't know what happened there and why it wasn't made final.

 

Is this good news as Eversheds have made me belief they have a charging order on my property?

Edited April 11, 2009 by reggie76
Spelling

[the_shadow]

Possibly interesting update.

Having checked all my paperwork from the courts I have no record of a final charging order being made only an interim charging order.

Checked the land registry and it shows Arrow as an interested party but only with an interim charging order, the court apparently had a hearing in April last year so I don't know what happened there and why it wasn't made final.

 

Is this good news as Eversheds have made me belief they have a charging order on my property?

 

Might be worth contacting the court to find out what happened at that hearing in April.

 

S.

[reggie76]

Depserate to get info from the courts, typical it's a Bank Holiday weekend and i've got to wait till Tuesday!!

 

Never mind I will get to work on my set aside application.

[reggie76]

At what point should any hearing or court order be transferred to the defendants local court?

I've been looking at the CPR and a little bit confused as all my dealings with have been dealt with Bradford CC which is miles away from me!!

[the_shadow]

At what point should any hearing or court order be transferred to the defendants local court?

I've been looking at the CPR and a little bit confused as all my dealings with have been dealt with Bradford CC which is miles away from me!!

 

When a defence is filed I think... could be worth ringing bradford CC on tuesday and asking why it hasnt been transferred.

 

S.

[reggie76]

I read that the case would need to be transferred to the defendant's home court to enforce any judgement.

[Docman]

Reggie

 

Eversheds use Bradford CC in preference to their nearest court in Leeds or the online service through Northampton like a lot of other solicitors. I understand they claim the service at Bradford is better. This may be true if Bradford is compared to Leeds but seems a bit odd when compared to Northampton. The cynic in me suggests it might be because they have a cosy arrangment with Bradford.

 

Downside for Eversheds is that they should have filed all the documents to back up their claim with the court, unlike when solicitors file through Northampton. That means it should be easier to get hold of the documents - if Eversheds had hem to file!

 

Make your application to set aside and ask that the case be transferred to your local couty court. Once it is there, you could attend the court office and ask to see the documets on the court file. If there are none, you then have the evidence for set aside.

[reggie76]

Would I be able to request the documents on court file before I go to a hearing?

 

I've received some documents but I know that's not all of them!

 

Also when a judge orders you to make full payment of the outstanding sum forthwith, how long do you have to pay?

 

I noticed that my judgement to pay forthwith was the 13th of the month and the creditors applied for a charging order on the 25th of the same month, I thought I had 16 days to object so I assume that would be to pay as well?

[reggie76]

bump

[reggie76]

Would I be able to request the documents on court file before I go to a hearing?

 

I've received some documents but I know that's not all of them!

 

Also when a judge orders you to make full payment of the outstanding sum forthwith, how long do you have to pay?

 

I noticed that my judgement to pay forthwith was the 13th of the month and the creditors applied for a charging order on the 25th of the same month, I thought I had 16 days to object so I assume that would be to pay as well?

 

Anyone able to answer my query above.

 

13 working days now since Arrow acknowledged my CCA request so fingers crossed nothing turns up!!

[Docman]

You should be able to get copies of all the documents from the court file. The rules are contained in the Civil Procedure Rules [CPR] part 5, at PART 5 - COURT DOCUMENTS - Ministry of Justice. Also look at the Practice Direction to Part 5.

 

I suggest you print both these documents off and go to the court with them. If you ask the court staff, they would normally arrange to copy the documents for you. Worse case is that you have to make a formal application for the documents and possibly pay a small fee.

 

If the CCA and other documents are NOT on the court file, then you will have a very strng case for set aside.