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bobj70

Consumer Credit Act - Help required to set aside Statutory Demand

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Hi All,

 

Just joined the forum, can only say great site and glad i found you, what a mass of useful stuff here.

 

Couple of questions, sorry if they have been asked 100 times allready.

 

A good friend of mine has trouble with two finance companies, she signed two joint agreements for cars both for her partner, who she is now seperated from for nearly two years due to abuse.

 

She has no paperwork or documents for either.One has a 12 month old judgment against them both, they sent her a statutory demand for payment,the were no obvious grounds to set it aside, so i have requested

all information, contracts etc which should be sent soon.Even in the few letters i have sent they have made mistakes, refusing to deal with me as her authorised third party, breaking oft debt collection guidlines, mis quoting fees for information etc.So i think they may have made lots of past errors in her paperwork. Short of reading the CCA front to back is the a "check list" of serious things they must do i can look for when the paperwork comes please ?

 

 

No 2. sorry for hogging things.

 

Finance company No 2 got 12 month old judgment against her ALONE although she is joint secondary signatory.The car was registered, used and taken when they split by partner alone, who must of sold it as he now drives a different car. I first of all sent reply, his car, he took it, so he should make payments, get it returned to them or sell it and give them the money. This was ignored or not commented on and the joint and several liability thing sent in reply.

 

Can they actually do this ?, I looked up definition of joint and several thing which i know is one, either or both BUT it also said ".. only if their concurrent acts brought about the harm to the plaintiff" which in this case is not true, he took the car and sold it, not her, so its a non concurrent act, yes?

 

 

Any help or comments on this would be really appreciated, many thanks.

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hi and welcome, if you have requested the agreements via a cca request then have a read of this

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

 

She must get the SD setaside, - how was it delivered, an has she tried to call the named person?

 

for the second problem, Im not sure but someone on here will know


PGH7447

 

 

Getting There Slowly

---------

 

Advice is given freely but is in no way meant to be taken as Gospel:-)

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Hi,

Many thanks for your reply, much appreciated.

I have requested agreements under CCA and all documents under DPA, neither have arrived yet, the 12 day CCA deadline is about up now.

 

As far as i know the SD was just posted normal post, dont have eenvelope, but by me sending a reply that means it has been received i would think anyway ?.

 

I looked at grounds to set aside the SD but with no evidence at that point non seemed to fit so i did nothing.The 18 days have now past (which i read can be exteneded) and what grounds could i state to do this please ?

 

Again thanks for any help.

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You really need to get this set aside, how long has it been since you requested the CCA, and how overdue is it, also who issued it, some dca's thorw these out like confetti


PGH7447

 

 

Getting There Slowly

---------

 

Advice is given freely but is in no way meant to be taken as Gospel:-)

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The request was sent 1st class recorded Tue 28/7, so it's actually 17 calender days to today, minus posting time and weekends so up any time now.

 

The SD was on a form 6.2, SD under section 268(1)(a) of insolvency act, It's being handled in house by the finance company rather than a solicitor, the form just has there details on, contact name, address etc it has no solicitor, court stamps etc.

 

As i said i think i have no grounds to apply to have it set aside at the moment regardless of the 18 days passing. My plan was get all the paperwork look at it myself, i have arranged trading standards and Citizens advice also both to check it out for CCA errors,(she may qualifiy for legal aid also) then hopefully with some evidence then challenge it, the women handling it has made recent cock ups so i am hoping the will be loads more to make it unenforceable.At the moment i think i will just get she signed it so pay it attitude without any evidence.

 

Again cheers for your help, i am not an idiot but appreciate i am tackling something i have little knowledge about.

 

Cheers

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Your possible reasons for setting aside could be....

 

An abuse of the process,

Default notice is non compliant

Non production of the agreement - as they are in default of your request then this alone is reason enough !!

Agreement doesn't contain the prescribed terms

 

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

 

 

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

and section 78 for running credit

 

 

78.

Duty to give information to debtor under running-account credit agreement.

— (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 [F1 £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.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(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.

 

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

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Was it 1st Credit ? Hamptons ? Capquest ?


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

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SD's are not from the court, this is basically a warning shot that they will apply for bankruptcy if you do not get it set aside, hence no court stamp

 

and the DCA is?


PGH7447

 

 

Getting There Slowly

---------

 

Advice is given freely but is in no way meant to be taken as Gospel:-)

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Thank you so much for your help, all of you.

 

The company concerned is Advantage Finance in Grimsby.

Just checked with Royal Mail it was signed for on Thur 30/7, so the 12 working days are actually up today Friday 14th counting the thursday.

 

Indirectly this has been asked for allready twice, although not enclosing fees or using legal terms. I sent a letter requesting it on 3/7, which was ignored as they would not talk to me but reply letter sent to debtor( breaking 2 OFT debt collection guidlines i understand) said a statement was enclosed which wasnt, she then sent a letter on 18/7 requesting information herself and saying statement was not enclosed and got a reply on 23/7 mis quoting fees payable and asking her to request again mentioning CCA which we did on 28/7.

 

Am i better leaving this to Monday, checking her post then sending your specimen failure to provide copy agreement letter.

 

Also apply to the court to have it set aside on this concrete reason alone, correct me if i am wrong but i need form 6.5 and need to add extra words explaining why over 18 days, i also need to get it changed to local birmingham court as judgment was in northampton, do i need a form for this or just a covering letter ?

 

Jumping the gun slightly but what will be there likely response to my actions please ?

 

Many many thanks for your help, sorry but i may have other questions as time goes on if that is ok ?

 

Cheers

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They should be issuing a demand with the name of YOUR local county court on it (not the one nearest to them) check your local county court handles bankruptcies. If they have issued a demand with their closest court on it then it would be an abuse of process (does it give the name of your own local county court ?)

 

You'll need forms 6.4 (set aside) and 6.5 (affadavit) and the affadavit will need to be sworn in at your local court (this is usually free) or £5 at a local solicitors. You need to submit the forms 6.4 and 6.5 with the original stat demand (keep a copy for yourself).....

 

May I ask what is in the particulars ? but don't be specific with dates or amounts...

 

Also have a look here - this might give you some good indicators....also does the demand have a name and a phone number of someone you can contact ?


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

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I think it should say Birmingham Civil Justice Centre, if that is the closest to you...


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

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Am I right in saying that there is an unsatisfied CCJ that they are applying the stat demand against ?


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

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42man thank you for your help with this.

 

The SD is against a ccj on 6/08 at northampton county court against both parties, although they live and local court is Birmingham.

 

The only court mentioned in demand is northampton one. The is a name, adress and number for contacty on it, the daft girl who is making the cock ups sending the letters.

 

Particulars just state vehicle make reg number, purchase agreement start date, 48 x months at £X per month.and defendant ceased to make payments so termination notice issued on 8/10/07 and total outstanding.

 

Cheers

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And I presume it was a regulated credit agreement ?


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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Did you fight the original CCJ ? or did they get summary judgment....You could start by asking them for a SAR as a first step, and get off an official CCA request with the £1 postal order....


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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As far as i know it was regulated, zero paperwork so far.

She knew nothing about the ccj until the SD turned up.

 

I have done the SAR adn also DPA stuff at the same time.

 

cheers

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Hi,

Me again sorry to keep asking questions, but your information is very helpful.

 

Just got the 6.4 and 6.5 forms to fill in along with the copy failure to supply information letter.

 

When i take these it says a hearing will be set for 7 days time, what is likely to happen there, do we both have to attend, what happens next if we are or are not granted it set aside, are we likely to be tied in knots with there more knowledgeable representative ?

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I see you keep saying Northampton court, this is usually the bulk clearance centre so it may have been allocated to your local court, you need to check this


PGH7447

 

 

Getting There Slowly

---------

 

Advice is given freely but is in no way meant to be taken as Gospel:-)

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It has been changed to local court at there request some time ago, thank you.

 

I am going to apply to have it set aside because of there failure to supply the agreement,shall i list any other possible reasons at this time also, like the fact they refused to deal with me as her representative (she sent signed/witnessed letter to this effect) and carried contacting her directly, against 2 OFT debt collection guidlines ? This will involve covering letters and more copy paperwork etc, but may strengthen judges decision.

 

Also if i do it just on the failure to produce the agreement what happens if they send it before, during or after the hearing, does this cancel the possible reason for setting it aside out.If it is set aside can they send another SD or "fix" the errors on this one to reinstate it ?

 

In an unenforceable agreement does it just have to have mistakes in the actaul agreement ALONE to be unenforceable or do all other CCA breeches count to make it unenforceable. In other words if the actual contract is perfect but the are 5-15 other errors does this qualify please ?

 

 

Cheers again.

 

 

P.S. Is the a contact name and address i could send a cheque donation towards the site too please ?

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Morning All,

 

Just wondering if someone could possibly answer the questions in my last post ?

 

 

Many thanks

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An update

 

Basically despite them not sending ANY contract or even a reply under the CCA within the 12 day limit and before we had chance to fill court papers in to get the CCJ and SD set aside they have issued a bailiff warrant of execution.

 

This was dated 14/08,posted 17/08, but due to area postal dispute arrived 24/8 on payment deadline day given, there limit to send information was up on 18/08 so it was acted on while in the 12 days.

 

I sent proper request letter, fee, recorded, etc even informing them under act they can not persue debt in this limit, so i assume i am on very safe ground saying this warrant is wrong to be sent.

 

I even sent another letter when 12 days up saying account in dispute, entered default, take this letter as formal complaint, either provide contract within 7 days or have your SD withdrawn or i will apply to have it and SD set aside (no answer to date)

 

I spoke to bailiff who said he would hold off until this week provided we filed papers last week.

 

Went to court Thursday did application to set aside for the SD and also his warrant of execution,asked for warrant costs and my costs to be deducted and if in powers for judge to request they comply with my CCA and Data Protection Act requests, but NOT the CCJ because was advised rightly or wrongly by solicitor the no contract failure and wrongly issued warrant did not make ccj wrongly issued so judge would not grant this to be set aside without me proving errors in its issue, which i can not with no paperwork, thought for now warrant set aside would at least stop bailiff action so safer bet.

 

We are talking end of September, start October for hearing dates according to court.

 

Am i right in thinking while these two applications are in they can (should)NOT legally take any further action, even if they do send the contract ?

 

Other than wait for court, Data Protection Act request dates to arrive what else can i do, i read posts saying send a cpr 31.14 for information but is that what i now need to do, i think (?) the SD and warrant set aside should prove itself with there actions ?.

 

Should i try and do a defence for these, have a go at CCJ with no paperwork or what ?

 

I am talking lady to CAB next week and trying to get her a legal aid solicitor, but most solicitors seem ignorant about the CCA.

 

She is worrying herself something silly and i am worrying i will drop a clanger not knowing what i am doing, other than trying my best.

 

Please,please help if you can, i am blowing my mind reading site trying to find what to do as all cases are different.

 

Cheers

in advance.

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Thank you citizenB

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Sorry to be a pest, i appreciate it's been a Bank holiday, just wondering if anyone had any advice for me about the above please.

 

Cheers

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This is a tough one Bob.....without the results of the SAR there isn't a lot you can do at this stage......do you have any of the old paperwork at all ? Because they are in default of a request for the agreement a judge MAY say, well they don't need to provide as judgment has already been entered....was it a default judgment ? or did you appear ? default notice ? penalty charges ?


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