My wife received a 1st crud stat demand

[Nick_the_Greek]

Arrived yesterday delivered by courier company.

 

I am guessing that we need to get it set aside?

 

Any help gratefully received. I am more than happy to post docs for perusal, with identifying remarks obscured.

 

We did request a copy of the CCA, and received an application form! Which is described on top as:

 

Your Halifax Visa Card Application

 

Seems to have the prescribed terms but no sign of the terms and conditions.

 

Anyway here is the CCA

 

CCA.pdf Notice that it says on it: "Under the terms of this agreement as set out overleaf" which despite requests they have not supplied.

 

What is next course of action? I am guessing hit them with a SAR, and a reminder that the debt is in dispute? Ask for a copy of the default notice as no record of us receiving one. Then fill in court forms and send them back? (Any need to get affidavit sworn?)

 

As I see it options are:

 

1. Try to come to an agreement and pay them a monthly amount

2. Go for a set aside

 

Any help would be great!

Edited April 1, 2010 by Nick_the_Greek

[mandyjayne]

set aside..

 

mj:)

[lilly white]

Good evening a 1st credit.

 

May i ask what is the interest rate for cash

 

Also what year was this card taken out

[Nick_the_Greek]

Cheers for replies, card taken out in 1989

[lilly white]

good god 89

 

Ok the reason i asked was the interest rates for cash is not there it just shows APR.it says condition 6 well where is it

also it is application,,,,,,,,,,,,,

 

So unless they come up the back of the agreement they are dead in the water and also they would have to prove it was on the back and if they had it belive me they would have sent it.

[harrassed senior]

It is always wise to go for the set aside, you have 18 days to respond

 

Forms for Setting Aside Statutory Demands:

http://www.insolvency.gov.uk/pdfs/forms/6-5.pdf

http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf

 

When was the last payment made?

[lilly white]

ok we need as per hs

 

when was the last payment

 

any insurance

 

do you have all the statments any charges

 

the rates are they same on your statments

 

sar halifax get everthing

 

did you get a NOA

[lilly white]

Ok this was stolen some time ago from 42man who i am sure will look in due course i belive he hates these people more then i do

 

Read this VERY carefully, EDIT it as required and use this as your affadavit...

 

The defendant totally disputes the debt.

 

The alleged creditor has provided no proof that the debt is barred by the statute of limitations Act 1980

 

The alleged creditor has provided no consumer credit agreement with the prescribed terms.

 

The alleged creditor has not provided any default notices in the prescribed form.

 

The alleged creditor has provided no statements for the duration of the account.

 

The alleged creditor has not provided any notices of assignment.

 

The alleged creditor has not sent me a letter before action.

 

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 Capquest. via guaranteed/recorded delivery on the (insert the date on the recorded delivery slip here) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies) – 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 (as the account does not exist),

 

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)

 

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.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the bankruptcy petition was issued.

DEFAULT NOTICE

 

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
  

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /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

 

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

 

On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON.

 

As a lone parent/low income earner/low income family (Chezza - EDIT these as required) with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

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).

 

Please, please, please read and try and understand what is being said here.....

 

Take the forms in yourself to the court (ring them first to make sure they handle bankruptcies) ask the court staff to swear in the affadavit !!!

 

RING the court on a weekly basis to find out IF a hearing has been set (the reason I say ring rather than watch the post is because items from court can and DO go missing)....I don't want you to miss a court hearing date for the Stat demand....

 

Any questions please ask....

 

If it gets to a hearing, I will help you with your costs sheet too.....

 

Please try and read as much as you can also on these forums...

______________

[lilly white]

ok a lot to take in however we will get there and win

[Nick_the_Greek]

WOW! Thanks, I am a fighter by nature and have found the debt collectors to be lower than snakes, so I am up for a fight.

 

Thanks to all of you, we will be raising a glass in your honour tonight.

 

I have already had a good read of the various posts in here, my complaint to the OFT will be going out on Saturday morning, other papers will be sent Special delivery on Tuesday morning.

 

Just to confirm, who do I send what to?

[lilly white]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/216709-connaught-collections-1st-credit.html

 

have a read re the forms

[harrassed senior]

With reference to the Court papers you will need to take them in person to your nearest Court - 'phone them first to make sure they deal with insolvency/bankruptcy. You will need to swear the Affadavit when you get to the Court Office.

 

The Subject Access Request needs to go to the Original Creditor.

[Nick_the_Greek]

ok we need as per hs

 

when was the last payment

 

any insurance

 

do you have all the statments any charges

 

the rates are they same on your statments

 

sar halifax get everthing

 

did you get a NOA

 

1. About 2 years ago

2. Not sure, how can we find out?

3. No we don't have statements

4. Will not know until we get results of SAR

5. Not sure we got an NOA (Notice of Assignment), will need to check

 

Thanks

[Nick_the_Greek]

With reference to the Court papers you will need to take them in person to your nearest Court - 'phone them first to make sure they deal with insolvency/bankruptcy. You will need to swear the Affadavit when you get to the Court Office.

 

The Subject Access Request needs to go to the Original Creditor.

 

My wife will be very nervous about doing this, she is a wreck at the moment, her father died last year and this might push her over the edge. Can I represent her if she sign to give authority?

[Nick_the_Greek]

We just found the NOA from Halifax dated July 2009. Assigns debt to 1st Credit

 

Interestingly they have also provided another NOA, this one dated 12/12/2008

 

When we asked for a copy of the default notice we were told:

 

Previous to our taking over this debt a default was registered by Halifax bank and paperwork sent to you and the credit agencies Experian and Equifax. And then did not provide a copy, is this important?

Edited April 1, 2010 by Nick_the_Greek

[mandyjayne]

you need to be moved to the legal forum with this..will try alert site to do this

 

MJ:)

[harrassed senior]

You could certainly go along and support her. Registering the paperwork at the Court, is just a matter of handing it over the Counter, it will just be ordinary Court clerical staff, all in a days' work to them. Swearing the Affadavit may be done in a private room, and all that happens is they read out and confirm that your wife knows what she is signing and thats' it.

 

It really is very untraumatic, and your wife has absolutely nothing to fear, most of us on here have had the same fears as your wife, and believe me we can all sympathise. No one will be 'judging' her, and they really do see hundreds of these.

 

The best thing that can be done, and this is just a suggestion would be that you could most definitely fill in all the forms for her, you seem to know all of the details that will be required and it will only be her signature that will be required, so perhaps you could delay telling her about the Court visit until nearer the time if this would ease matters.

[babydoll0141917]

subbing

[PGH7447]

re credit care the application form says if you do not want it tick here, is it ticked?

[harrassed senior]

So who are the parties to the 2008 NOA?

[cerberusalert]

Moved to Legal Forum.

[Nick_the_Greek]

No credit care is not ticked, (it's difficult to say for sure with bad photocopy). So I guess this means she had credit care, is that important?

 

Both NOAs say NOA from Halifax to Worst Cruddites

[Delfi101]

So this lot are still at the SD trick eh?

 

You may want to read this.

 

They've got quite a reputation for throwing this stuff around like confetti.

 

(Check out the successes thread - they did the same to me and got a bloody nose for their trouble)

[PGH7447]

it means you have paid for something that you may not have been able to use as is normaly the case with these types of cover

[lilly white]

No credit care is not ticked, (it's difficult to say for sure with bad photocopy). So I guess this means she had credit care, is that important?

 

Both NOAs say NOA from Halifax to Worst Cruddites

 

 

yes please look at this creditcare could well be an insurance do you have all the statments or some does it charged for this.

 

Also are you aware that you can claim back all your charges back to 1995

 

if it was me i would SAR the oc.