connnaught/stat demand

[carp123]

hi

 

i got a stat demand from the above dca i phoned them offering to pay £5 a month which they refused and said they would only accept £109 a month which i cant afford it all started last year when i was made redundant and could not afford to pay my debts ,i found employment in dec 09 but for half the wages i used to earn i told them all this and also explained that i was struggling to pay my mortgage as well but the person on the other end of the phone didnt really care at all about my family or my mortgage commitments ,such as utility bills and council tax i did cca them last and all i got back from them was a application form with my signature and a bit about t and c's,

Because of my situation with my new job i have entered into the mortgage rescue scheme which is proceeding very slowly ,im starting to get to the end of my tether with all this rubbish and the non stop phone calls

 

My debt is with Sky Card £2600

 

Any one have any ideas what i an do now!!!!!!!!!!

[PGH7447]

first send this for the phone calls

 

Dear Sirs

Harassment by telephone

 

Account Number: XXXXXXX

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

I now require all further correspondence from your company to be made in writing only.

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

 

Yours faithfully,

[postggj]

these cretins still using sd for debt collection when under the

oft spotlight

 

report

report

report

 

seems they are not taking the warning very seriouse

[PGH7447]

have you tried phoning the name on the stat demand, if they refuse to speak to you then report them to the oft

[Bazooka Boo]

i got a stat demand from the above dca i phoned them offering to pay £5 a month which they refused and said they would only accept £109 a month which i cant afford

 

I would call their bluff and ask them to take you to court. If £5 a month is all you can afford, then that is all the judge will tell you to pay:D

 

They huff and they puff and they threaten to collect your doorstep, but very very rarely do they take you to court. Because they know full well that the judge will not make you pay any more than you can afford, and they won't get what they want:D

 

IMHO, I would write to them with a breakdown of your Income and Expenditure (I&E) and your proposal to pay £5 a month to settle the debt, and ask that all interest and charges be frozen.

 

If they then turn round and say they can't accept that amount, then I would just pay what you can afford, ie, £5 a month, that way then, in a courts eyes, you have acted reasonably by paying what you can afford.

[lilly white]

how old is the alleged debt

 

any charges ppi,

 

regards lilly

[carp123]

hi

 

thanks fo the replies, in answer to lily yes there are charges on there but there is no ppi .

 

im going to phone them ad ask for the name on the sd but what should i do if there is someone by that name?

[lilly white]

please read this as posted by 42 man

 

your defence

 

 

The debt is totally disputed

 

The alleged creditor has not provided any legible copy of a copy of the agreement referred to in the demand.

 

Under section 78 (1) of the Consumer Credit Act A formal written request for any true copies of signed consumer credit agreements was sent to XXXXXX. via guaranteed/recorded delivery on the (insert the date on the recorded delivery slip here Dave) (see attached document 1 – you need to copy the letter and the recorded delivery slip – to date they have not sent any copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

 

I believe there are no properly executed signed Consumer Credit Agreements, If they had been able to supply these agreements then they would have done already to avoid slipping in default under section 78 (1) of the Consumer Credit Act

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

The Consumer Credit Act in section 78(6) States that

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement

 

 

It must also be noted that the agreement must contain the prescribed terms.

 

Consumer Credit Act

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

 

The alleged creditor has provided no default notice in accordance with the Consumer Credit Act 1974 this stated the default notice in order for it to be valid must be in the prescribed manner and be correct.

 

 

The Need for a Default notice

Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I 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)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

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 a 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

REFERENCE TO CASE LAW

 

As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:

‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

 

The defendant has not been provided with any statements for the duration of the alleged agreement (it not being uncommon that some debts are made up entirely of charges)

 

The Defendant denies that he is liable to the Claimant as alleged in the demand at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2.3 Since the claimant explicitly states the notice was “sent/served (EDIT this)” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the demand, and therefore any assignment has not been perfected in law.

 

I gracefully request -

The Judge dismisses the demand on the above evidence.

The Judge order the claimant to delete all adverse information held on my credit files.

The Judge orders the claimant to pay my full costs in light of the distress and damage to my family and to make an indemnity award

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

[lilly white]

Ok

 

We Will Amend The Last Post To Suit

 

I See You Have A Cca Can You Post It On Here Please Remove Your Id

 

Lilly

[lilly white]

MORE TO READ AS PER 42 MAN

 

he defendant has on several occasions attempted to contact the person named on the demand, but on every attempt, I have been refused permission to speak to him. This I believe also constitutes an abuse of the process.

 

I refer to 6.2 of The Insolvency Rules

 

(3) The demand must specify the name and address (and telephone number, if any) of one or more persons with whom the individual may, if he wishes, enter into communication with a view to establishing to the Authority’s satisfaction that there is a reasonable prospect that the debt will be paid when it falls due or (as the case may be) that the debt will be scoured or compounded.

 

 

The alleged creditor has not 'served' anything on me, but simply posted a demand by first class - I believe that this is a frivolous attempt at scaring me into paying and therefore an abuse of the process.

 

I refer to:

 

Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

[carp123]

Sorry lily but i seem to be a bit lost as what to do with the infromation that you have post for me ,i have been reading different posts on this subject and many people seem to do many diffrent things ,perhaps its me being stupid but i seem to be losing the plot a bit with how i should go about this ,some people get them set aside others say ignore them and the dca's wont do anything cost it would cost them too much money to do it.

 

the person named on the stat demand is busy,i did not leave my name or any details so they didn't know i was calling them .

 

also how do you go about reporting them to the OFT as well .

 

many thanks

[Bazooka Boo]

[email protected]

 

Or take a look on their website.

 

However they will not look into individual complaints, but when they receive a number of complaints about a company they will then investigate them:D

So your complaint might be the final nail in their sorry coffin!!

[PGH7447]

the person named on the stat demand is busy,i did not leave my name or any details so they didn't know i was calling them .

 

many thanks

 

They always say that

[42man]

I'd certainly take any issue of a stat demand from 1st Credit/Connaughts as serious - please read this (link below) and DO REPORT THEM TO THE OFT - What makes it worse is that if they have turned down your offer of payment, then this is a certain NO NO in the eyes of the OFT.... - http://www.oft.gov.uk/shared_oft/press_release_attachments/1stcreditrequirements.pdf

 

You might also like to email this chap - Gareth Thomas MP: Home (He is the Undersecretary Of State For Trade And Consumer Affairs)

 

This is what he said recently in a letter to me

 

"Debt collectors who issue stat demands without giving debtors reasonable opportunities to agree a repayment schedule are likely to be in breach of the OFT's debt collection guidance. This guidance outlines the type of business practice that the OFT consider unfair and therefore incompatible with fitness to hold a consumer credit licence.

 

In addition to this, the government has recently strengthened the OFT regime to give them greater powers to investigate and take action against unscrupulous or incompetent firms. The OFT will be targetting its monitoring and scrutiny activities on debt collectors.

 

If you wish to comment on a company's non-compliance with the OFT's guidance, you can do so by going to the OFT website and downloading a complaints form, which has been established so that debtors and their representatives can provide them with the information they need in order to investigate complaints quickly and effectively. The form can be found at: The Office of Fair Trading: Debt collection practices "

 

What do the particulars in the demand say ? (but don't be specific with the figures)....

 

Please have a read of some of the stat demand threads in here DCA Legal Successes - The Consumer Forums - i'd certainly get this set aside if it was me...I presume they couriered it to you ? or was it hand delivered ?

 

If you need help please shout....

[carp123]

thanks for the advice but i dont have a clue how to get it set aside and i dont know how to fill the forms out or what forms to use or where to go can anyonehelp me with these thanks

[42man]

Have a read here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/164580-capquest-sd-please-help.html

[42man]

What do the particulars of the debt say Carp ? (but don't be specific with numbers)

[carp123]

here is the cca that 1st credit sent me when i cca ed them can anyone have a look please i have had to zip it can i have feedback on this please

skycard.zip

Edited June 12, 2009 by carp123

[lilly white]

as it stands rubbish where are the terms

[lilly white]

carp

please read this

 

 

It must also be noted that the agreement must contain the prescribed terms.

 

Consumer Credit Act

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

[ODC]

the government has recently strengthened the OFT regime to give them greater powers to investigate and take action against unscrupulous or incompetent firms.

 

That just about covers every DCA:grin:

[carp123]

so lily does that mean that the debt is not enforceable !!

[lilly white]

As it stands IMHO it is application i cant see any terms so it is unenforceable

 

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to

enter as debtor or hirer into a prospective regulated agreement.

 

regards lilly