County Court Claim Received – But no response to CCA request.

[BankBailoutNo3]

I have in the last few days received a County Court Claim from Northampton (CCBC). Particulars of claim are:

 

1.By an agreement in writing and regulated by CCA 1974, the Claimants issued to the Defendant a Credit Card for the purpose of the Defendant acquiring goods/service on credit.

2.The Defendant breached the agreement by failing to make payment as required under clauses 5, 6 & 9 of the agreement and on XX/XX/XXXX the Claimants issued a Default Notice pursuant to section 87(i) of the CCA 1974.

3.On XX/XX/XXXX the Claimants issued a Formal Demand to the Defendant.

4.The Claimants therefore claim the balance due under the agreement: £XXXX.XX

 

Background Info

 

In Autumn 2007 got into financial difficulties and missed about three payments, received a DN (which did not allow for service – only 14 days not 14+2days) I then requested a copy of the signed agreement under S78.

 

No response to my CCA request was received and the OC never supplied any documentation. Sent written notice to OC informing them of this default.

 

Then I received from their solicitors a formal demand for repayment, I replied to this pointing out their client was in default of my CCA request. (At this time I made a SAR from the OC. Documents supplied did not include a copy of the Credit Agreement).

 

Heard nothing further for 2 months that received letter from claimants in-house DCA requesting payment in full. I replied to this again pointing out their in default of my CCA request.

 

Heard nothing for 6 months than started receiving numerous letters from another DCA requesting payment in full and threatening (in this order) 1. bankruptcy, 2. obtaining a CCJ, 3. charging order over any property I owned, 4. court action, 5. form for me to fill in showing my income and expenditure as they would be willing to accept reduced payments, 6. account now on hold whilst they obtained a copy of the agreement from their client.

 

Then six weeks later letters 7 & 8 (same letter two different dates) threatened immediate court action if payment not received in 7 days. (Sent four days apart and each dated 10 days prior to them being received in the post). Finally letter 9 informed me it was clear I was just attempting to avoid payment of debt.

 

Then it all went quite and heard nothing until March this year when I received a LBA from claimants solicitors again. Replied to this enclosing copy of my original letter to them and again pointing out that their client remained in default of my CCA S78 request.

 

Went quite again until received County Court Claim a few days ago. I have acknowledge online and intend to submit a full defence. I have also made a CPR 31.14 request to see what this turns up.

 

 

That is the background to this claim, however I need some advice on the claimants failure to comply with my S78 request. The CCA requires that when a creditor fails to supplied the documentation requested under S78(1) they are not entitled to enforce an agreement. I realise that most OC's ignore this and pass this matter onto numerous DCA's.

 

However is a claimant entitled to issue a claim through the courts whilst they remain in default of such a request.

 

Is their any case law or legal precedent that I could use in my defence which deals with such an instance where a claimant brings legal proceedings whilst clearly being in default of a CCA request.

[vjohn82]

I have heard of cases being allowed to carry on... you just put it in your defence that there are in breach of s.78.

 

You have done the right thing by using the 31.14 as this should reveal to you all of the documentation they will be relying upon in their PoC. That's not to say they will; if they have the document then you can obviously verify whether it is enforceable or not. If they do not then this makes them look silly when you file your defence

[I've got no money]

I have in the last few days received a County Court Claim from Northampton (CCBC). Particulars of claim are:

 

1.By an agreement in writing and regulated by CCA 1974, the Claimants issued to the Defendant a Credit Card for the purpose of the Defendant acquiring goods/service on credit.

2.The Defendant breached the agreement by failing to make payment as required under clauses 5, 6 & 9 of the agreement and on XX/XX/XXXX the Claimants issued a Default Notice pursuant to section 87(i) of the CCA 1974.

3.On XX/XX/XXXX the Claimants issued a Formal Demand to the Defendant.

4.The Claimants therefore claim the balance due under the agreement: £XXXX.XX

 

Background Info

 

In Autumn 2007 got into financial difficulties and missed about three payments, received a DN (which did not allow for service – only 14 days not 14+2days) I then requested a copy of the signed agreement under S78.

 

No response to my CCA request was received and the OC never supplied any documentation. Sent written notice to OC informing them of this default.

 

Then I received from their solicitors a formal demand for repayment, I replied to this pointing out their client was in default of my CCA request. (At this time I made a SAR from the OC. Documents supplied did not include a copy of the Credit Agreement).

 

Heard nothing further for 2 months that received letter from claimants in-house DCA requesting payment in full. I replied to this again pointing out their in default of my CCA request.

 

Heard nothing for 6 months than started receiving numerous letters from another DCA requesting payment in full and threatening (in this order) 1. bankruptcy, 2. obtaining a CCJ, 3. charging order over any property I owned, 4. court action, 5. form for me to fill in showing my income and expenditure as they would be willing to accept reduced payments, 6. account now on hold whilst they obtained a copy of the agreement from their client.

 

Then six weeks later letters 7 & 8 (same letter two different dates) threatened immediate court action if payment not received in 7 days. (Sent four days apart and each dated 10 days prior to them being received in the post). Finally letter 9 informed me it was clear I was just attempting to avoid payment of debt.

 

Then it all went quite and heard nothing until March this year when I received a LBA from claimants solicitors again. Replied to this enclosing copy of my original letter to them and again pointing out that their client remained in default of my CCA S78 request.

 

Went quite again until received County Court Claim a few days ago. I have acknowledge online and intend to submit a full defence. I have also made a CPR 31.14 request to see what this turns up.

 

 

That is the background to this claim, however I need some advice on the claimants failure to comply with my S78 request. The CCA requires that when a creditor fails to supplied the documentation requested under S78(1) they are not entitled to enforce an agreement. I realise that most OC's ignore this and pass this matter onto numerous DCA's.

 

However is a claimant entitled to issue a claim through the courts whilst they remain in default of such a request.

 

Is their any case law or legal precedent that I could use in my defence which deals with such an instance where a claimant brings legal proceedings whilst clearly being in default of a CCA request.

 

The short answer is that there is a really awful High Court case called Rankine which says that a failure to comply with S78 is not a defence HOWEVER Rankine also says that where there is a failure to comply with S78.

 

"The appropriate step to be taken by the Rankines would have been to seek a stay of the proceedings pending provision of the information."

 

So what you could do is make an application on an N244 for an Order that the claim is stayed until S78 is complied with or alternatively you could just pursue the CPR 31.14 request

[vjohn82]

Superb advice there I would seek the stay unless you were

 

a) sure that the CCA is unenforceable and;

 

b) you wanted to claim for some of your LIP costs

 

A stay seems the best way forward though.

[r&b]

do u not think that the prob there however, is the executable, not necessarily enforceable agreement issue to s.78 that they can pretty easily comply with, wasting costs on the N244?

[BankBailoutNo3]

Thanks for replies. I have been expecting them to come up with "this is what your agreement would have looked like when sent out for you to sign" - but have never had anything.

 

Will probably wait until I get a response (if any) to CPR 31.14 request. My defence needs to be submitted by 23 June so have time.

 

Surprised they have issued County Court Claim if they have no agreement - this makes me think that they have now turned something up.

[BankBailoutNo3]

Superb advice there I would seek the stay unless you were

 

a) sure that the CCA is unenforceable and;

 

b) you wanted to claim for some of your LIP costs

 

A stay seems the best way forward though.

 

 

As you say a stay seems best way - not too concerned about claiming my LIP costs and until I see the CCA would have no idea if unenforceable or not. Card applied for in 1996 and can only remember completing an application form after picking up brochure in bank.

[r&b]

Surprised they have issued County Court Claim if they have no agreement - this makes me think that they have now turned something up.

 

few people on this site will be surprised about that. if they have anything of value u will be getting a copy very quickly i would expect, to nip any defence u think u might have in the bud. they try and bully these things thru judgment and then to charging oders etc to secure their unsecured (often unenforceable) debts.

my advice would be to wait til u see anything concrete before worrying if they have enforceable docs or not (as indeed u appear to be). they will undoubtedly try every trick up their sleeve to make u fold early when in fact they often have a pair of twos, and they re usually concocted from 2 different packs anyway.

[vjohn82]

It's a tactic to try and worry you I would imagine. But then this is the importance of doing the legwork of 31.14, SARs etc beforehand to make sure you have everything they would rely on in court

 

I wouldn't let it worry you though... if it was 1996 the chances of it complying with the legislation required would be fairly slim I imagine.

[I've got no money]

It's a tactic to try and worry you I would imagine. But then this is the importance of doing the legwork of 31.14, SARs etc beforehand to make sure you have everything they would rely on in court

 

I wouldn't let it worry you though... if it was 1996 the chances of it complying with the legislation required would be fairly slim I imagine.

 

The other thing of course is that its' an agreement that S127 (3) CCA 1974 will apply to - so if the prescribed terms aren't in the document that the OP signed then it will be irredeemably unenforceable

[BankBailoutNo3]

I wouldn't let it worry you though... if it was 1996 the chances of it complying with the legislation required would be fairly slim I imagine.

 

That has been my feeling all along - and maybe why they have never supplied anything as they know it is unenforceable - until I received claim form.

 

Will have to wait and see if anything turns up. It is something of a "waiting game" dealing with something like this.