Urgent Help required with SD from NCI / Orange **WON + COSTS***

[dannysdad]

Bump........

[dannysdad]

Hi All,

An update,

Phoned county court today to find out for any update on my application to set aside.Told the Judge has viewed my application and set a hearing for both parties to attend.Now it is in a queue for a hearing date. To prepare myself for that, I am reading the different threads to gain as much information as possible.However, still confused with these questions and need some advise please

''SAR confirmed that Orange didn't send the assignment notice to me.Without that can they sell the debt to DCA ?(still heard nothing back from AG for the prove it letter sent nearly a month ago). Also if Orange doesn’t has itemized billing anymore, how to find out as what has been included to make it to £2300, when services were already suspended on £1300? Writing to orange for this amount to be in dispute is a better option at this stage or should I wait now and deal with all this in the court? ''

As always thanks for any help with this

Thanks and Regards

[phil_nottingham]

Hi All,

An update,

Phoned county court today to find out for any update on my application to set aside.Told the Judge has viewed my application and set a hearing for both parties to attend.Now it is in a queue for a hearing date. To prepare myself for that, I am reading the different threads to gain as much information as possible.However, still confused with these questions and need some advise please

''SAR confirmed that Orange didn't send the assignment notice to me.Without that can they sell the debt to DCA ?(still heard nothing back from AG for the prove it letter sent nearly a month ago). Also if Orange doesn’t has itemized billing anymore, how to find out as what has been included to make it to £2300, when services were already suspended on £1300? Writing to orange for this amount to be in dispute is a better option at this stage or should I wait now and deal with all this in the court? ''

As always thanks for any help with this

Thanks and Regards

 

You could do both...

[dannysdad]

Hi,

Received a letter from court today, states the date of hearing on XXXX Nov 09. I was sent the copies of all the papers submitted (form 6.4, with hearing date, affidavit)

 

WHAT IS THE NEXT STEP? Do I need to take anything with me on hearing date witness statement etc? Or should I just take the SD affidavit and application forms ? I mentioned two cases on the affidavit (copied from one of the thread) (1.Judge Boggis QC - RE AWAN - [2000] BPIR 241 2. Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) should I take copies of these cases on the hearing? Also I have requested the costs on the affidavit ,I have seen template for costs statement on some threads, do I need to send the costs statement to court or to AG as well?

Sorry for being a bit dumb, but honestly never dealt with legal matters before and don't know what happens on court day and what should be the next step.Any advise is much appreciated.

Thanks and Regards!

Edited October 18, 2009 by dannysdad

[dannysdad]

Hi,

RE: the court hearing in mid November, can someone please advise with the above .......

 

 

Regards

Edited October 18, 2009 by dannysdad

[Belaflat]

Do you have the letter confirming no agreement, if so, I would definately take that. It shows that no matter what they threaten, no Court in the land will give judgement against you (unless you dont contest it...default).

[dannysdad]

Do you have the letter confirming no agreement, if so, I would definately take that. It shows that no matter what they threaten, no Court in the land will give judgement against you (unless you dont contest it...default).

 

Hi BF,

Thanks for the advise.And Yes, I have the letter from Orange confirming that they don't have copy of the contract.Wordings of the letter are as follow

''With regard to your request for a true copy of your agreement, we also do not hold copies of your contract.''

OK, I will take this to the court. However, not sure if I need to say to the Judge that I never entered into any contract with Orange? Or that the alledged creditor states on the SD that amount is owed under an agreement , which hasn't been provided / available?

Regards!

Edited October 12, 2009 by dannysdad

[buzby]

The contract itself would be immaterial, as you would have to swear on oath the you had not entered into any contract with Orange, and the provision of a payment record would prove to the satisfactin of the court that it did.

 

As far as the court is concerend, you have to disprove that the money claimed for was owed. If you are asked how the 'debt' was created and you admit it was becaue of your mobile, they will accept you are responsible for it. It is not illegal to sell on debts, and if Orange confirm to the court they have done this, looking for contracts is fine for CCA issues (and is ofcourse a requirement) bit for a service contract it isn't. Neither is there a Default Notice or anytning else required, which makes enforcement easier from their PoV.

 

Let's assume you lose and the court makes an order to pay - then you can ask for time to do so, which the creditor may or may not accept. The issue of making you bankrupt has nothing to do with the AG, but the pursuer. They would have to believe there is assets to be realised otherwise it costs and isn;t worth the effort. What is the total amount they say is owed?

[ODC]

Surely they would need a contract to prove the monthly charges as well as any cancellation charges they have levied on the account. If they didnt produce a contract between the OP and themselves how could they prove the length of time the contract was to last. It could have been one, six, twelve, eighteen or twenty four months. How also without a contract could they prove the amount due as Orange like every mobile phone company has a multitude of tarriffs

[ODC]

As far as the court is concerend, you have to disprove that the money claimed for was owed.

 

 

????? Sorry bit I thought it was up to the Claimant to prove a debt exists rather than the alleged debtor to prove it doesnt. How do you prove a negative:??

[buzby]

'Prove the monthly charges?' Easily done - they can show the dates and amounts the customer remitted. As for the duration, this will be available as part of the customer's record/file, you'll get this is you SAR them for it. Thge point remains, the network is unlikely to state the account holder had an account when he did. IF he denies this, then as substantiation they will point to the payment record. Unless the defender had a pretty good reason as to why he paid for a contract he claims does not exist, he'll lose.

 

As to your first question - you overlook the fact that IF the person is trying to state the contract is invalid because it doesn't exist, if they prove it does. That's one up to them. However, if the issue is one of there WAS a contract, but the amounts were wrong - then the customer would clearly have had an opportunity to complain and get it rectified before it got to the stage of litigation, unless one or other of the parties was being unreasonable. If the network said 'A', but the customer said 'B', then it would be reasonable to expect the customer to provide documentation to disprove the network... where is this?

 

Having nothing but blind faith will lead to a disappointment, as in the absence ot substantiation (and this is usually a failing of the consumer) the network invariably prevails.

[ODC]

You have missed my point. You take out a mobile phone contract for say 24 months. After 8 months you stop paying. Mobile company disconnects you, bills you for remaining 15 months plus charges you for full cost of your shiny new handset.

 

1. How do they prove the contract was for 24 months and not 9 or 12

2. Where is the contract that says you will pay full price for handset if you do not keep contract for 24 months.

 

Without a contract to refer to then how could the OP be sure of what was agreed. Part of the contract would have included a monthly charge for airtime but if the OP is disconnected then why should he pay for airtime that he doesnt have the benefit of. Oh yes I forgot he signed a contract agreeing to pay this but unfortunately the Mobile company cannot produce this so the court will be expected to believe them and not the OP

 

I am not trying to cause an argument with you by the way but as there is a considerable amount of money involved them I feel the OP has a right to demand proof and asses his liabilities. Mobile Phone companies are no different from any other business in that they need to show a contract exists.

[buzby]

Read the first five lines of my post - this was answered.

 

As to point 2 - the price of the handset is immaterial - the handset has no cost and will be supplied as a 'consideration' for entering into the contract with the relevant minimum term commitment. The issue is then the requirement to complete the agreed minimum term commitment, and if not, the cost is then calculated based on the commitment to complete. Of course, the consumer may already have socumentation to prove a different understanding, and in this case this document will be required to refute the claim. Having nothing but a hope will fail.

 

If the OP is attempting to assert there is NO contract extant because the relevant piece of paper cannot be provided will not work. Networks are not stupid, the fact that contracts are not treated with any respect (or required) is vecause the payment in respect of the contract is proof that one exists, and just as people no linger need to physically sign acreements, we are reaping the benefit of this acceptance.

[ODC]

I take your points BUT they surely they still have to provide written proof about the monthly payment and the duration of the contract. Its up to the Creditor to prove a debt exists.

[dannysdad]

Hi ODC / Buzby,

Thanks for your comments. Really interesting points to note....

Buzby,

The owed amount is around £2300.And the only asset I have is the mortgaged house with 17% (as at end of August, advised by the lender) negative equity. Making me bankrupt gives them nothing except more costs.....

 

Suppose, if I don’t dispute the existence of agreement, how about the fact that neither the Orange nor Arrow has informed me that the debt has been sold/purchased by Arrow. How do I know if Arrow really owned this debt now or it has been legally assigned to them??? They haven't even provided the statement so who knows how the balance from £1300 (when the services were suspended on £1300) reached to £2300? Also, I have noticed that the date of contract/agreement stated on the SD is different than mentioned in the account notes received from Orange SAR.Which is makes me more suspicious whether they really owned the debt or not?Does this make any difference?

 

Since the of SD, I have sent two letters asking for prove of the debt to AG. Its been a month now and no response what so ever........

[buzby]

ODC - Not a requirement, it can be asserted and challenged, in which case it will be up to the court to decide whether it existed or not. (Based on the evidence).

 

Can you flesh out roughly how the amount reached that figure? It seems very high for something that doesn;t have a'stolen phone whilst roaming' ring to it. If there are punitive charges added for their 'trouble' you need to hghlight these as being undfair and unreasonable.

 

You ARE entitled to a breakdown of all charges - especially if as you say Orange said the debt was £1,300. As you did not agree to other charges (I assume?) then collection costs of £1k is unreasonable and certainly worthwhile challenging.

[ODC]

Also, I have noticed that the date of contract/agreement stated on the SD is different than mentioned in the account notes received from Orange SAR.

 

This in my opinion would be good grounds to demand that some sort of proof about the agreement is produced.

 

Orange have failed in their SAR to disclose any proof that the debt was legally assigned to the DCA. There is a requirement under s135 of the Law of Property act to prove that this was served on you. Without this the DCA cannot legally pursue the alleged debt through the Courts. It would have had to have been orange who instituted proceedings.

 

There is also the matter of the outsanding balance. This is in dispute because neither Orange nor Global have outlined how this figure is reached. The amount is therfore the subject of a serious dispute which in itself is grounds to have an SD Set Aside.

 

Also Arrow should have attached details of the dates and times the attempted personal service of the SD

 

If you were unable to make contact with the person named on the SD then thats another reason to have it thrown out.

 

I really do not understand the stupidity of Arrow making you Bankrupt to settle this debt. It will cost them at least two grand to do and as you have no monsey they will be left with a huge bill for nothing

[dannysdad]

Buzby,

Thanks for the response.....

Among the other papers Orange has sent me there are three letters as well as follow

First one, dated August 05, states ’’ balance out standing of £1300, if don’t clear in 7 days services will be suspended.” Then second letter, dated September 05, states ‘’ your account has been suspended. Clear the balance of £1300 in 5 days’’ Third letter, dated October 05, states ‘’ Act now to avoid debt collection and outstanding balance changed to £2300 .

 

From the top of my head, £1300 is the actual bill probably and they have included the line rental for the remainder of period to make it £2300.But again £1000 line rental for 8 months means £125 per month when it was actually £25 per month. Orange said in SAR that they cannot provide the break down for £2300 because they only keep the record for 2 years. In this instance I don't know what to do or how to get the break down for £2300. Bearing in mind Arrow has confirmed on the SD that no interest has been added to the account. Should I ask Arrow to proof the figure is free of any collection charges/interest? If yes shall I write directly to them or ask for it on the hearing date?

 

ODC,

Thank you......

I have already mentioned the below points on the affidavit (no agreement, no assignment notice, no default notice ,No statement for the period of the account and no affidavit from the process server) however I didn't mentioned the s135 of the Law of Property act or specified that the breakdown of the £2300 hasn't been provided? If I prepare a witness statement with more details of the above, can I take that to the court on hearing day ? Or will I be allowed to say all this in front of the judge ? (Apologies again, no idea what happens on the hearing date ) With regards to contacting the named peoples on SD, I have tried that but they ask for the reference number, I said I will provide to the named peoples only as this is private.The lady goes, well can't put you through unless you clear the security:eek: I said will ring back later and hanged up... Shall I provide them the refrence and try?

 

Once again thank you guys and all others who have guided me so far in this regard.

Edited October 12, 2009 by dannysdad
To rectify that among other papers three letters in response to SAR from Orange are dated 2005 and not 2008.Amended above

[Human Writes]

ODC,

Thank you......

I have already mentioned the below points on the affidavit (no agreement, no assignment notice, no default notice ,No statement for the period of the account and no affidavit from the process server) however I didn't mentioned the s135 of the Law of Property act or specified that the breakdown of the £2300 hasn't been provided? If I prepare a witness statement with more details of the above, can I take that to the court on hearing day ? Or will I be allowed to say all this in front of the judge ? (Apologies again, no idea what happens on the hearing date

 

Once again thank you guys and all others who have guided me so far in this regard.

 

Your contract was a service agreement not a credit agreement, Orange does not have a legal obligation to provide you with a default notice, I wouldn't refer to the lack of a default notice in written statements or verbal statements in court.

 

My understanding of the county court process is that you have to outline the particulars of your claim in writing prior to any hearings so that Arrow Global and the Judge can see how you plan to present your arguments.

 

I don't think you can just turn up on the day of the hearing and present a whole raft of new arguments or points on which you intend to rely - it would probably be classed as an abuse of process.

 

Check the Civil Procedure Rules and speak to a clerk at the court for further advice or seek the advice of a solicitor.

 

CPR - Rules and Directions - Ministry of Justice

[dannysdad]

Your contract was a service agreement not a credit agreement, Orange does not have a legal obligation to provide you with a default notice, I wouldn't refer to the lack of a default notice in written statements or verbal statements in court.

 

My understanding of the county court process is that you have to outline the particulars of your claim in writing prior to any hearings so that Arrow Global and the Judge can see how you plan to present your arguments.

 

I don't think you can just turn up on the day of the hearing and present a whole raft of new arguments or points on which you intend to rely - it would probably be classed as an abuse of process.

 

Check the Civil Procedure Rules and speak to a clerk at the court for further advice or seek the advice of a solicitor.

 

CPR - Rules and Directions - Ministry of Justice

 

Thanks Human Writes....

Orange didn't comply with the SAR until after I made the application for set-aside. Now I have the information and found some more arguments or points of dispute. If I have already submitted the affidavit to court, how can I change or add new arguments? Can I prepare a witness statement and fax it to the court and AG? Is that acceptable? Also, is there any time scale which needs to follow, i.e. any arguments need to be provided before 7 or whatever time before the hearing date? Do you know or any one please?

 

 

Regards!

[Belaflat]

Human rights, I think reading your post you are confusing a Judgement hearing with a set aside of a Stat Demand.

 

Dannysdad, A set aside is not a court hearing in the CCJ sense but merely an action to prevent a company or individual petitioning for bankruptcy.

You only have to have 1 valid point to suceed. You have presented a series of points in your application and although many may not be allowed, as I said, you only need one of them to be valid and its set aside.

Dont get too disheartened.

[2Grumpy]

Did you eventually get through to the named person on the SD?

[dannysdad]

Thanks BF, Makes me feels better !

 

Did you eventually get through to the named person on the SD?

 

2Grumpy, Tried twice and both time they want me to clear the security questions before I can be put forward to the named peoples. Not sure If I should provide them the personal information or not ? Said it's private but didn't work

[dannysdad]

This in my opinion would be good grounds to demand that some sort of proof about the agreement is produced.

 

Orange have failed in their SAR to disclose any proof that the debt was legally assigned to the DCA. There is a requirement under s135 of the Law of Property act to prove that this was served on you. Without this the DCA cannot legally pursue the alleged debt through the Courts. It would have had to have been orange who instituted proceedings.

 

There is also the matter of the outsanding balance. This is in dispute because neither Orange nor Global have outlined how this figure is reached. The amount is therfore the subject of a serious dispute which in itself is grounds to have an SD Set Aside.

 

Also Arrow should have attached details of the dates and times the attempted personal service of the SD

 

If you were unable to make contact with the person named on the SD then thats another reason to have it thrown out.

 

I really do not understand the stupidity of Arrow making you Bankrupt to settle this debt. It will cost them at least two grand to do and as you have no monsey they will be left with a huge bill for nothing

 

Hi ,

Have tried (links are attached below) to put together some information to prepare a witness statement (copied from another thread) Does it looks fine? As advised by ODC, I want to mention these three (below) points to the statement as well

 

1. the date of contract/agreement stated on the SD is different than mentioned in the account notes received from Orange SAR.

2.There is the matter of the outstanding balance. This is in dispute because neither Orange nor Global have outlined how this figure is reached. The amount is therefore the subject of a serious dispute which in itself is grounds to have an SD Set Aside.

3. Arrow should have attached details of the dates and times the attempted personal service of the SD (No affidavit of service)

 

Can I add these points in plain English or have to be with legal terms/style? I suppose as the other information I have used in statement is with the legal terms so would be better if I can get the above same as well. Can someone help with this please ?

 

http://i965.photobucket.com/albums/ae136/dannysdad_photo/Witnessstatement_Page_1.jpg

http://i965.photobucket.com/albums/ae136/dannysdad_photo/Witnessstatement_Page_2.jpg

 

http://i965.photobucket.com/albums/ae136/dannysdad_photo/Witnessstatement_Page_3.jpg

Edited October 13, 2009 by dannysdad

[ODC]

Dannysdad

 

Mobile phone agreements are not covered by the CCA 1974

 

You also need to put in your statement the fact that you have been unable to contact the person named on the SD. Include dates and times you tried to contact them and were refused access