Advice needed for imminent court hearing - Stat Demand

[Fyffesy]

I'm in court tomorrow 42 man.

 

Not sure what to expect but i'll just see what happens. The DCA has ceased all contact with me over the past few weeks and have ignored all my perfectly valid questions/corrections regarding what they claim.

 

I'm not sure what to make of that.

[foolishgirl]

I'm not sure what to make of that.

 

Maybe a no show??

 

Anyway, be prepared for everything & then you won't be surprised.

 

Good luck!

[Fyffesy]

Thanks.

 

Will let you know how it goes and give you more details that may or may not be of use to you in future.

[nowayjose]

Good Luck for tomorrow Fyffesy.. I know how you are feeling, Im in court on Thursday, I see you havent mentioned the DCA, I wonder if its the same as mine??

 

Look forward to hearing how you got on

 

NWJ -xx-

[Fyffesy]

Thanks NWJ.

 

I will try to let you know how it goes tomorrow. Although i suspect i'll go straight to the pub afterwards.

 

Good luck on Thursday anyway. Glad to hear plenty of other people are standing up to these shambolic numpties.

[nowayjose]

Any news Fyffesy??

[42man]

Bump for some news ?

[foolishgirl]

 

I will try to let you know how it goes tomorrow. Although i suspect i'll go straight to the pub afterwards.

 

 

 

Are nursing a hangover Fyffesy?! What news?

[lilly white]

you must have sober up by now

 

any news

[Fyffesy]

Sorry everyone. Been in work til now.

 

It was adjourned for another 6 weeks because their solicitor decided to draw up a witness statement the day before the hearing.

 

The judge wasn't best pleased about this as they knew of the date of the hearing some three weeks ago but chose to "ambush" both myself and the court by not submitting this in advance.

 

There's quite a lot of legal references within this new statement so i'll get cracking with trying to discredit it.

 

There was a small victory though as the solicitor has finally admitted that one of the two debts is indeed statute barred (as I've been telling the DCA for months). So that's a third of the total debt that they cant now enforce at law anyway.

 

And so the battle continues..........

[foolishgirl]

At long last - we thought you'd left the country

It was adjourned for another 6 weeks because their solicitor decided to draw up a witness statement the day before the hearing.

 

Disgusting - DJ should have ruled it out of order Would he/she have granted you a similar extension - hmm...

There's quite a lot of legal references within this new statement so i'll get cracking with trying to discredit it.

 

Post it up if you need help

 

There was a small victory though as the solicitor has finally admitted that one of the two debts is indeed statute barred (as I've been telling the DCA for months). So that's a third of the total debt that they cant now enforce at law anyway.

 

Hurrah!

 

And so the battle continues..........

 

 

Six weeks breather anyway Fyffesy

[Fyffesy]

Thanks Foolishgirl.

 

Yep its another 6 weeks and at least i now know how the process works so i can just concentrate on dealing with this matter.

 

I'm fairly certain that i wouldn't have been granted an extension had i pulled the same dirty trick. It's frustrating because the court costs for yesterday will now be added to the next hearing. Thus meaning i'm running the risk of paying (if i ultimately lose) for yesterday even though it was adjourned through no fault of my own.

 

I may well post the statement in the next few days but i want to have a proper look at it first.

 

Thanks for all the advice though. I really appreciate it.

[42man]

Let me know if you need help.....

[42man]

Who are the DCA/solicitors ? PM me if you like...

[42man]

IMO....with the excessive penalty charges and their charges they have added on pre litigation, then the threshold is going to be below £750...don't forget the all important default notice too....have you sent a SAR to the original creditor ?

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The 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 an 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.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[Fyffesy]

You are a star 42man.

 

I will take great pleasure in ramming this where the son doesn't shine. I was having second thoughts about all this since the adjournment as my confidence in winning had faltered a little.

 

But i've thought about it and i'm not prepared to hand this to them on a plate. I'm not going to allow their shoddy, deceitful and incompetent behaviour to result in their victory.

 

Debt collection should be simple really. A DCA should purchase debts WITH all the relevant documentation and ensure that in the event of being challenged, they are able to quickly provide cast iron proof. Simple!

 

I wish everybody knew that it is possible to take them on. I'll never know why these DCA's seem to get offended when somebody has the "cheek" to ask for some proof.

 

If we all sent off money to anybody who asks for it without providing evidence i suspect that we'd all own shares in a fictional Nigerian gold mine and be inadvertadly funding the Russian mafia

[Fyffesy]

And the most satisfying thing is that the "statement of truth" from their solicitor actually contains two untruths, poor punctuation and schoolboy error style typing errors.

 

Has anybody else heard of a "Subject assess request"?

 

This numpty has attempted to pick holes in my defence by resorting to petty and desperate means before submitting his error ridden statement to court at the last possible moment.

 

I really should post this "solicitor's" statement on here. It's actually laughable that he has signed something which looks like it has been written by a 12 year old.

 

Memo to all fellow Caggers: do not fear Morgan Solicitors. They are chancers who can't be bothered to actually obtain evidence before providing a Court with their factually incorrect statements.

 

Morgan = Poodles. They do whatever their master tells them to do and never stop to question whether or not their master is lying to them.

 

When the solicitors follow the trawler it is because they think sardines will be thrown into the sea!

[cymruambyth]

Great to hear your fighting talk. I'm subscribbing as I fear I may hear from them soon....

[42man]

Well you can add your additional costs too from the 1st adjourned hearing to the next one.....they are obviously trying to impress, and don't forget to report them to the OFT...

[Fyffesy]

Thanks 42man. I'm making a start on preparing the necessary details for a complaint to the OFT. Do you think they are likely to show any interest though? Bearing in mind the CSA and FOS both sided with the DCA. I should point out that both parties distanced themselves from actually stating that they believe the DCA can legally enforce the alleged debts. Instead, their official stance is that I "probably" do owe these debts. The DCA are attempting to gain favour in the Judge's eyes by repeatedly stating that the CSA and FOS sided with them. The DCA seem unable to grasp the fact that this is not very impressive or relevant bearing in mind both parties did not confirm their belief that the alleged debts are legally enforceable.

 

Don't worry too much if Morgan do contact you Cymruambyth.

 

I was originally concerned by their involvement and the legal jargon that they threw into the equation. However, when i looked into it in more detail it became apparent that the DCA had presumably withheld certain facts from their in house solicitors (generally their embarrassingly incompetent errors such as fabricating a phantom payment being made on an account 4 years ago).

 

I think you'll probably discover the same thing if they get involved with your situation. Keep a look out for the poor grammar, spelling mistakes and incorrect terminology.

 

It's hilarious!

 

P.s I don't claim to be an expert with grammar, spelling and terminology but then again, I also don't claim to be a big powerful solicitor (who submits error ridden statements to County Court)!

Edited May 29, 2009 by Fyffesy

[foolishgirl]

Thanks 42man. I'm making a start on preparing the necessary details for a complaint to the OFT. Do you think they are likely to show any interest though?

 

You probably won't get much response/action Fyffesy but your complaint adds to others that then prod the OFT into taking action against the DCA - as with the recent penalty threats imposed on Ist Credit etc.

...The DCA seem unable to grasp the fact that this is not very impressive or relevant bearing in mind both parties did not confirm their belief that the alleged debts are legally enforceable.

 

Well they would say that wouldn't they?

 

 

FG

[Fyffesy]

I just feel it may have a bigger impact if i wait a while before complaining to the OFT because it seems like never a week goes by without the DCA making yet more embarrassing errors.

 

For example, today i have received a tin pot response to a question i posed to the DCA two months ago. I had simply asked them to explain why the results of the SAR did not contain the recording or transcript of the phone call which they allege I made to them during which they claim I confirmed my details to the DCA.

 

I felt that this was particularly important as their entire claim should surely depend on there being proof that they had tracked down the correct "debtor". Particularly as the SAR flushed out a letter between the DCA and the FOS in which they claimed i had confirmed all my details and even "promised to phone back to make a payment the following day".

 

Their pitiful and desperate explanation claimed that the evidence of this is within the computer generated "Account History" which actually only contains computer jargon referring to a call on that date where the telephone monkey has clicked a couple of buttons which says i confirmed my name, address etc.

 

Funnily enough there is no mention upon this history list mentioning my promise to ring back the next day.

 

So i can only come to three possible conclusions.

1) There was no phone call and the DCA made the whole thing up.

2) There was a phone call but the phone monkey has decided to click the "confirm" button on his computer screen without actually obtaining confirmation.

3)There was a phone call but the DCA do not want to provide the recording or transcript as it will expose their deceitful tactics.

 

 

I think i am correct in stating that Cabot have a policy of recording their phone calls and state this at the beginning of any such calls. So where is this recording and why are they quoting parts of it to the FOS whilst keeping it well away from me? Surely it is imperative that any DCA stores something as important as its evidence of correctly identifying the true debtor?

 

This is one of the many reasons i feel as though i should just wait until the end of the court business and then submit a huge and detailed complaint the OFT. Otherwise i'll just have to keep on posting more and more additions to them.

 

And trust me, I already have records of dozens of examples of the DCA's dirty tricks over the past year and a half. But i wont bore anybody with them now.

[foolishgirl]

 

I felt that this was particularly important as their entire claim should surely depend on there being proof that they had tracked down the correct "debtor". Particularly as the SAR flushed out a letter between the DCA and the FOS in which they claimed i had confirmed all my details and even "promised to phone back to make a payment the following day".

 

Their pitiful and desperate explanation claimed that the evidence of this is within the computer generated "Account History" which actually only contains computer jargon referring to a call on that date where the telephone monkey has clicked a couple of buttons which says i confirmed my name, address etc.

 

Well of course, it they decide they will produce this 'evidence' as hearsay in a hearing you will be claiming transcripts under the Civil Evidence Act won't you?! ;)

And trust me, I already have records of dozens of examples of the DCA's dirty tricks over the past year and a half.

 

You're not on your own there, Fyffesy

 

I agree, good idea to pile up the evidence before going to OFT, more grist for the mill.

[Fyffesy]

I just want to be able to provide the OFT with a huge bundle of evidence and let them deal with it. I'd like to say I'll just walk away with it at that point but i probably wont because i have a vendetta from when they attempted to trick me into paying off a debt which they have no evidence of and they harassed my mother (big mistake).

 

I think we would all agree that NOBODY is allowed to harass our mums!!

 

As i said previously, the most efficient way a DCA can operate is by ensuring they are in possession of ALL relevant document BEFORE they pursue anybody. Why is this so difficult to understand?

 

They clearly operate on a percentage tactic. They know full well that a significantly higher amount of people will cave in and pay at some point (especially if they can be tricked into it at the first point of contact) than those who will fight to the end.

 

I can completely understand why people may give in at various points. This may be because they can't afford solicitor's fees or the DCA work their magic and make people feel like their is no way out but to pay them off. I must admit that if i had a wife, kids and mortgage i would've paid them off a long time ago.

 

But i am in the unique position of being single, in my 30's and officially of no fixed abode but in full time employment. Their threat of bankruptcy (although not ideal) really isn't as terrifying to me as it would be to most people. They're either gambling that i have a lot to lose or they genuinely detest me so much that they want to bankrupt me. (shame on me for having the cheek to ask them for evidence them for 18 months?)

 

That's why I'm going to meet them head on. I really have nothing to lose. Win or lose at least somebody who reads this thread will be able to calculate the risk to themselves.

 

I've been one of those Caggers who has taken advantage of the good advice given to others on this site for the last 18 months without actually getting personally involved. I've cost this particular DCA a lot of money because i had the "cheek" to be a "rogue customer". It's quite simple really. Prove i owe it and then I'll pay. I wouldn't have got this far without this site and the fantastic Caggers who get involved so i have to give something back (spot the Hollywood style cliche).

 

I hope people consider me as a test case. If i win, I'd like to think that that might inspire somebody to take them on. But if i lose then at least i know other people in similar circumstances who read this might not risk whatever they have.

 

And so it continues.................

Edited May 31, 2009 by Fyffesy

[foolishgirl]

 

It's quite simple really. Prove i owe it and then I'll pay.

 

 

My motto too Fyffesy! Always has been & long before the existence of CAG. However I echo your sentiment, this site is invaluable for giving those who don't have a great knowledge of the law or its processes the confidence to go out there & tackle the **** who think bully boy tactics will go unchallanged & they will win every time - they won't!!

 

Keep up the fight - you will get there in the end...