Legal Action: how to start off. IMPORTANT IF YOURE BEING SUED

[james141]

Please delete - wrong thread

[basa48]

Anyone advise if an assignee has to issue a new DN (the OC did issue a DN before the sale to the assignee) before a claim can be issued?

[pt2537]

Anyone advise if an assignee has to issue a new DN (the OC did issue a DN before the sale to the assignee) before a claim can be issued?

as long as a valid notice has been issued then no it doesnt

[basa48]

as long as a valid notice has been issued then no it doesnt

 

Thanks PT. That's what I feared.

 

Once the OC has issued the DN what charges or costs can an assigned DCA add to the sum claimed - if any?

[emandcole]

Hi Basa, you have checked the validity of the DN haven't you?

[basa48]

Hi Basa, you have checked the validity of the DN haven't you?

 

Not mine, but from it's description it sounds good. Unfortunately time has moved on and the recipient has admitted liability electronically (case through Northampton) and got a CCJ. They are now going for a re-determination of the monthly payments the DCA requested and was querying the added amounts of the claim.

 

The DN gave a balance of £3739 with £77 arrears, the DCA originally claimed £3684 in April which has now risen to £4250!

[emandcole]

Not mine, but from it's description it sounds good. Unfortunately time has moved on and the recipient has admitted liability electronically (case through Northampton) and got a CCJ. They are now going for a re-determination of the monthly payments the DCA requested and was querying the added amounts of the claim.

 

The DN gave a balance of £3739 with £77 arrears, the DCA originally claimed £3684 in April which has now risen to £4250!

 

Post-judgment interest? Seems as if the debtor cannot free themselves of this debt. Did the court allow the DCA to effectively do what they want?

[basa48]

Post-judgment interest? Seems as if the debtor cannot free themselves of this debt. Did the court allow the DCA to effectively do what they want?

 

Not sure of the full details but it appears the debtor made a written admission to the claim and the CCJ came back with an order for over £200 / month at the claimants request!

 

I suggested the matter of the amount of the debt is queried at the re-determination hearing.

[basa48]

I have my own odd situation.

 

Longish story and I don't want to give too much away to possible prying eyes - but:

 

I had a default judgement against a credit card company, but it was subsequently set-aside.

 

The judge ordered the defendant (the CCC) to file and serve a full defence within 21 days. The 21 days passed a few weeks ago.

 

I received service of the defence by the due date but the court has not!

 

What now - request default judgement, again. Could they claim a mistake and obtain another set-aside or should I point out to the court this is the second time they have ignored court procedures?

[basa48]

OK I seem to have killed this thread stone dead

 

May I please ask what anyone might think is the best way to proceed?

 

I can request default judgement which is purely an admin task by the court case management team. Or I could make an application for default judgement, which I understand has to go before a judge and might therefore carry more weight in any subsequent application for a set aside (but will cost a court fee).

 

I suppose I need to do something?

[Bigdebtor]

Basa

 

I can't help you - but suggest you pm those CAGGER's that you think might be able to help to alert them to your posts?

 

Good luck

 

BD

[DonkeyB]

Q: How would they deal with you in this situation?

A: They would shaft you!

 

Unless they sent the WS to you recorded, go for strike out. Reconfirm with the court whether they have received anything, then hit hard.

[foolishgirl]

The judge ordered the defendant (the CCC) to file and serve a full defence within 21 days. The 21 days passed a few weeks ago.

 

I received service of the defence by the due date but the court has not!

 

Hmm - methinks this may have been a deliberate ploy to gain extra time. However it's up to them to ensure that their defence is received by the court on time.

 

I would apply for judgment by default. It costs you nothing & will cost them if they then choose to apply for a set aside. SJ means an app by you at a fee & gives them the opportunity to defend at no cost. IMO get it in the bag, address the arguments later if they choose a fight.

[gh2008]

If the defence that you have received is 'totally without merit' then I would apply for Summary Judgement against them - they will be given the opportunity to defend and it would be *very* difficult for them to overturn it (i.e. would be an appeal).

 

If there is some merit in it and it wasn't sent recorded then just go for default judgement again. - can't think they would set it aside *again*

[vint1954]

Q: How would they deal with you in this situation?

A: They would shaft you!

 

Unless they sent the WS to you recorded, go for strike out. Reconfirm with the court whether they have received anything, then hit hard.

Agree with that DB and foolishgirl.

 

They must submit to the court,so go in hard if they have ignored the court again.

[diddydicky]

as long as a valid notice has been issued then no it doesnt

 

and by the same token- if the OC has served a defective Dn then the assignee is bound by that too!!

 

he buys the debt "lock stock and smoking barrel" " warts and all"

[diddydicky]

Hmm - methinks this may have been a deliberate ploy to gain extra time. However it's up to them to ensure that their defence is received by the court on time.

 

I would apply for judgment by default. It costs you nothing & will cost them if they then choose to apply for a set aside. SJ means an app by you at a fee & gives them the opportunity to defend at no cost. IMO get it in the bag, address the arguments later if they choose a fight.

 

i'm not sure that failing to provide to the court in time will get you very far

 

the most important thing is that YOU received it in time

 

courts generally accept that creditors deal with hundreds if not thousands of cases at any one time and offer them a lot more lattitude that they do you!

 

i suspect, in any event that many judges do not get around to reading the documents until the day before the hearing

 

IMO you would be wasting everyones times seeking to obtain judgement by default t because you or the court were served a few days late

 

the court may well argue that it is not for you to decide if the court has been inconvenienced

[gh2008]

he buys the debt "lock stock and smoking barrel" " warts and all"

 

but do they .........

 

I have yet to see a DCA confirming that they own the agreement - and therefore when you request a copy of the current agreement it is between you and the DCA rather than you & the OC. If they have bought it 'lock, stock 'n' barrel' then the agreement is now between you & them......

 

I am getting more and more convinced that they are buying what they call the 'debt' or the 'Rights' or the 'future receivables' rather than the agreement itself.

 

Which then leads to the point that the assignment is not absolute and they cannot take action solely in their own name etc.

[diddydicky]

i think you may be getting confused

 

If the dca is "acting" for the Oc then the OC is still responsible but the DCA is obliged, as he is acting for the OC to respond to your requests on behalf of his client and no simply fob you off or ignore you

 

If the debt has been assigned- then the person to whom it is assigned is the new creditor

 

if you have NOT BEEN INFORMED that the debt has been assigned- then whoever is contacting you (DCA or solicitor) has no legal rights and cannot themselves demand payment- only on behalf of whoever they are acting

 

what happens in reality is that many dca's do not in fact buy the debt- but simply offer to take it on "sale or return" - without actually completing any of the formalities of assignment

 

if they get a result all well and good- otherwise they simply return it to the OC and he passes it further round the DCA merrygoround

 

In short unless you have been notified of the assignment- it aint assigned as far as you are concerned

[gh2008]

Ok, I have 4 assigned accounts currently. Aktiv, Lowells & Cabot x 2.

Yet none of these will supply a copy of the *current* agreement i.e. the one between me & them. They insist on sending the ones between me & the OC.

 

Donkey posted an interesting article by Cabot on another thread which pretty much confirmed they DO NOT buy the agreement as a whole but the rights only.

 

Cabot are currently going down the 'it aint dead' route claiming arrears only ... but will deny they are the creditor ........

[diddydicky]

they need only send the agreement between you and the OC together with proof that the debt has legally been assigned to them

 

the assignment (if valid) merely substitutes them for the OC

 

clearly you cannot expect them to produce that which does not exist ( a signed agreement between you and the assignee)

[gh2008]

I asked for a copy of the current executed agreement.

 

The agreement that was sent is still between me and the original creditor - (as it happens the OC did send a copy of the current & the signed original) ....

 

I am waiting for them to confirm in writing that that is the case.

 

It was a very clear question, basically can you please confirm whether #### or yourselves are the current creditor in this agreement.

[gh2008]

an interesting find by Donkey on this subject

http://www.consumeractiongroup.co.uk/forum/legal-issues/166413-ccman-goldfish-6.html#post2972795

 

We do not believe that debt purchasers fall within the definition of “creditor” in section 189(1) of the Consumer Credit Act, because they take assignments of the rights, but not the duties, of creditors under consumer credit agreements:

Edited June 12, 2010 by gh2008
added quote

[DonkeyB]

Wasn't me who found it - I just nicked it! Apologies to whoever found and posted it first - remiss of me not to credit you, and I'm afraid I can't locate the thread. You can bet it had "Cabot" in the title though...

[diddydicky]

I asked for a copy of the current executed agreement.

 

The agreement that was sent is still between me and the original creditor - (as it happens the OC did send a copy of the current & the signed original) ....

 

I am waiting for them to confirm in writing that that is the case.

 

It was a very clear question, basically can you please confirm whether #### or yourselves are the current creditor in this agreement.

 

i have to say it as i see it- i think you are being pedantic and this will not help your case!!