Creation/Irwin 1a small claim Summons old BOS then GE Money Joint Loan *WON*

[24233513afw]

Hiya PF

Hope everything is weel with you.

Eventually got reply from the infamous GE re PPI they say because it is outwith the 6 years limit they dont have to do anything I am absolutely gutted that they have got away with all this money and I still have a balance which I am going to have to pay them due to enforceable CCA.

The PPI would have covered this no problems.

Any suggestions...would be gratefully recieved.

Cheers

AFW

[alanalana]

Hiya PF

Hope everything is weel with you.

Eventually got reply from the infamous GE re PPI they say because it is outwith the 6 years limit they dont have to do anything I am absolutely gutted that they have got away with all this money and I still have a balance which I am going to have to pay them due to enforceable CCA.

The PPI would have covered this no problems.

Any suggestions...would be gratefully recieved.

Cheers

AFW

 

This is not quite correct if you have been mis-sold PPI you can claim back beyond the six years. PPI has been mis-sold for a long time by a lot of financial institutions and they know it. The bubble has burst and they want to hang on to their ill gotten gains. To do this they will take any action to put you of claiming. My own claim against RBS was a classic but I kept at them and eventually reclaimed PPI on loans back to 1997/98.

 

So contest what GE are saying and if they keep on spouting rubbish the let the Information Commissioners Office and the Financial Ombudsman Service and even the Office of Fair Trading in on what is happening and ask them to get involved big time.

 

 

Please see this link from the stickies.

BANKS are giving incorrect advice on PPI

 

Do not let them off the PPI hook as they will try anything to put you off the PPI reclaiming trail.

 

aa

[24233513afw]

G'Morn aa

Many thanksforyour reply unfortunately without going into to much detail (in case they are out and about) the company who we originally took the loan out with were not regulated by FOS at that time. Been in touch with FOS and they have advised me to claim original underwriters. Thats just our luck...or should I say nae luck.

Cheers

AFW

[24233513afw]

Hi Folks

 

Was wondering if anybody had read the post above......and had they heard of this before. I am contacting FOS on monday as they did say they would try and help with a case against the Insurance underwritersbut I am not quite sure in what context.

 

Willkeep you all posted.

AFW

[alanalana]

Good luck anyway with the FOS lets hope they come up trumps for you.

[24233513afw]

Hiya peeps,

 

Finance went totally haywire in 2006/7 when hubby couldn't work after major surgery needs caring for now 24/7.

 

Contacted creation Finance in July 2007 to request CCA

they sent a blank effort that simply does not match the original CCA

(I know cause I have it)

tried to come to agreement to pay they were not interested.

 

Next

I knew is they have a DCA on my back there was no default notice or termination notice issued managed to fight them off with the help of people on here,

then another DCA was banging on our door,

eventually saw them off and reported them to OFT

this was all away back in 2007

all helped by you great people on here.

 

After checking my Credit File I have found out they defaulted me way back in September 2007 (Never ever received Default/termination letter/notice.

 

Now I have received a Default Notice/Letter from them to be remedy by May 2010

(don't want to give exact date as snoopers on here).

Date came and went there was no Termination Letter received.

 

Then yesterday I received letter from another DCA saying pay up or else.

 

1.If there was a default registered on my credit file in September 07 although never received a default notice/letter at that time(Credit File updated 6/6/10) can creations issue a default notice now and changed this date.

 

2. Are they allowed to call in the DCA without issuing a default or/and termination letter.

 

Their reply to unenforceable CCA away back in 2007 they did say that "they could not retrieve a copy of the signed agreement".

 

In another letter back in 2007 they state that "they are under no obligation to supply a copy of the original agreement.

We acknowledge that whilst we failed to supply a copy of the agreement we were not entitled to enforce the agreement as set out under section 78 of the act.

 

We have not sought to enforce the agreement, however interest continues to run and the debt continues to be payable,.

 

There is no provision in the Act for the debt to be written off and you would still owe us the money claimed.

(I wanted to set up an agreement in the first instance but they would not listen)

 

If anybody can help me with any advice it would be greatly appreciated.

 

Cheers

AFW

[cerberusalert]

Moved to Debt Collection Forum

[harrassed senior]

Well, they can waste all the money they want on postage etc. but it is not going to change the fact that they do not have an enforceable agreement.

 

As far as the default goes, have they entered both alleged defaults on your credit file? I am no expert, but in a similar situation I was advised they can only default you once and the earlier default is the one that has to stay on the file (so make sure you have a copy of that).

 

It might be worth sending a SAR to them (Creation) to see what information they have regarding the default issue and also th re-confirm that they are still in breach of your CCA Request.

 

There is, of course, the question of Harrassment and if you can find a copy of the OFT Guidelines for DCA then you could quote the relevant parts to them also.

 

Sorry, if this is not much help, hopefully others will be along with other ideas, but it might be a starting point.

[24233513afw]

Thanks harassed senior,

 

Have got a copy of Credit File showing default - not too sure about this though as it shows updated 6/6/10 does that mean the default date has been updated or is this something else.

 

Also does this update on my file effect the statue barred time limit as I was countinng that it would be statue barred from 2007 when default was entered on to my file but with them uodating my file will this change.

 

Subject Access Request will be sent on Monday.....when I can find the template letter on here have been going round in circles last night looking for it any idea where I can find it. I still get so lost on this forum its like a maze or maybe its my brain..

 

Thanks for your help its greatfully appreciated.

AFW

[cerberusalert]

Have got a copy of credit file showing default - not too sure about this though as it shows updated 6/6/10 does that mean the default date has been updated or is this something else.

The update is normally made monthly & shows the status of the a/c.

Also does this update on my file effect the statue barred time limit

No.

when I can find the template letter

Letter #11 The Consumer Forums - Debt collectors

[24233513afw]

In a severe panic now.....just received a Court Small Claims Summons from Sheriff Officers this morning served to at my door....(In Scotland)

Not sure how to go about this can anybody help. Remembering I am in Scotland and can't depend on CPR.

 

The scenario is......Creation sent me a blank copy of CCA I know for a fact that it is not the same as the one they produced when I opened the account as I have the original.

 

15/6/2007 - DCA stared to write saying wanted full payment or else. Informed them account in dispute. - Never heard again from them.

 

13/9/2007 - Noticed default on my Credit Record with Experian

never received a default or termination notice for this account from creastions. Wasn't sure what to do (at the time I had not long nursed and lost my Father to illness and Hubby was ill)

This was registered after DCA was sending threating letters.

 

3/3/2009 - Started to receive more threaten letters from another DCA who were also advised that this account was in dispute but would not take go away therefore reported tham to Office of Fair Trading their letters eventually stopped in October 2009.

 

14/5/2010 - I RECEIVED A DEFAULT NOTICE FROM CREATION FINANCE DATED 9 MAY 2010

 

12/6/2010 - Starteed to receive more threating letters from Ascent Collection again replied with Letter Account in Dispute.

 

18/6/2010 - Received another letter from Ascent threating Legal Action.

 

30/6/2010 - Received letter from Irwin Mitchell Solicitors Recoveries threaten legal action

 

23/7/2010 - Been served with Small Claims Court Summons (Scottish Court I am in Scotland) and haven't got a clue where to start.

 

1. Do I admit liability or do I fight remebering that I have a Husband who is not too well.

 

I haven't sent a SAR away to them yet due to ill health but will today, know I have left it a bit late as there will be charges on this account and I am sure that there was protection too however I only works 15 hours at the time so I shouldn't have had it I do remember cancelling it many years ago.

 

Please Please Please can somebody help me I am in hole and digging further down each minute of the day.

AFW

[emandcole]

HI, can we please see the default notice and have you got the envelope too?!

[42man]

You may find some useful information here, this is a Scotland dedicated forum for debt - Dealing with Debt in Scotland - The Consumer Forums

[24233513afw]

I already have a post in the Legal Forum but thought now as they have sent me a Court Summons and I live in Scotland it would be better in the Scottish Forum (At first thought it would be better to keep it beside Store Cards).

 

Way back in 2007 we got into financial difficulties due to ill health.....

I CCA'd OC of my store card, they sent back a blank CCA, many letters to and fro from them saying they had complied by sending blanck CCA and terms & conditions.

 

Then I received demands from DCA again informed them no enforceable CCA. Then another DCA raised their heads eventually had to report them to Office of Fair Trading.

 

Now another DCA has contacted me again pointed no enforceable CCA then their Solicitors wrote saying legal action pending.

 

Now I have been served with Small Claim Summons at the Edinburgh Sheriff Court and really don't know which way to turn, head is just going round in circles.

 

After reading leedoe's thread and a few others that Monty, Rory, Ida, SFU have helped with. Please could you help me prepare for a court defence. Not quite sure what to expect.

 

How do I find out what their solictors are going to produce in court ?

Do I have the right to know what they are relying on ?.

 

I am not sure if I can do a defence looks quite frightening and intimidating and I have a sick husband who I look after, but I shall have a go.

 

Default Notice

I have also recently received a default notice from the Store Card Company however, they registered a default on my Credit Record with experian in July 2007 and have had DCA chasing me since then but I definately never received any Default Notice or Termination Notice at that time only letters and monthly statements demanding payment. I only received Default Notice on 12th May 2010 dated 7th May 2010.

 

It says that to dispute the claim and attend court and state a defence return page 5 on or before the return date which is 25/8/2010

Does this mean I have to have a defence written up by 25/8/2010.

 

Please Please can anybody help me through this, have tried to get a copy of the Civil Procedures & Practice Book by Hennessy but really expensive and library does not have a copy.

 

I can post up anything you peeps need.

 

I have just today sent for a SAR to OC, do I also send one to Solicitors ?

 

Any help gratefully received I feel so alone just now.

AFW

Edited July 24, 2010 by 24233513afw
Few Bits & Piece missing

[24233513afw]

Please is there anybody that can help me!!!

[IdaInFife]

Hiya afw,

 

 

first of all what type of case is it? small, summary or ordinary?

[IdaInFife]

Hi AFW,

 

go ahead with the sar but for the sols:

 

Ok you need to make an incidental application to get the docs you need,

 

I'll post up the links of other threads for the process for quick ref:

 

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/176298-need-help-court-defence.html

 

http://www.consumeractiongroup.co.uk/forum/DCA-legal-successes/195822-m-more-court-papers.html

 

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/180427-rrfcfan-court-wf-all.html

[IdaInFife]

alos what part of th country you in, just so i can check who maybe local to get hennesey's book or access to it. if you wish you can PM me the location

 

ida x

[24233513afw]

Hi Ida

 

Many thanks for your reply...I have SAR OC (Dont want to give to much away with names) but shall SAR Sols today.

 

Also due to guest a few guest reading this thread recently I shall PM you with my location.

 

Just going to have a read at the links you sent me.

 

Thanks once again Ida.

afw

[24233513afw]

Hi Ida

 

Sorry... Didn't realise there was different types of cases, its a Small Claim Summons I have received.

 

As this is a Small Claim Summons, do I send a Incidential Application out, if so who do I send it to Court or Solicitors. I have seen an Incidential Application letter on CAG but can't find it again as not sure how to word it.

 

Managed to get a copy of the Hennessy Book reserved at Library(Librarian spelt the name wrong in the first instance). That will save me lots of pounds and pennies.

 

SAR went to OC on Sat they received it today (Sent Special Delivery)

 

SAR going to Sols tomorrow (Spent most of the day on phone trying to get Hennessy book)

 

Most cases I have read about seem to summary or Ordinary not Small Claims did not even realise that there was different summons till Ida pointed out to me the three different terms. (Not sure what the difference is between them).

 

Do you want me to post up a copy of the summons or would you rather I sent it by PM.

 

Would it be easier to keep to this thread or the one I had already started in Legal Section I shall be guided by your expertise.

afw

[IdaInFife]

We can merge then when we need to but be helpful just now for the others to see and comment

 

The IA is submitted with your defense which we will get some help on as you can't do too much as waiting on docs

 

Ida x

[24233513afw]

WHat if the docs dont arrive in time to put in a defence. Does the defence have to be in before the return date or the hearing date.

 

Not quite sure about the Default notice with this lot either. OC defaulted me in Sept 2007 I never received a Default Notice or Termination Letter but they had DCA chasing me for money. Low and behold I received a default notice in May 2010 but no termination letter.

 

1. Are they allowed to get DCA to chase you before they serve a Default Notice and should they have to send me a termination letter ?

 

2. Also they recorded a default on my Credit file in May 2007. How can they record a default with sending a default notice in May 2007.

 

3. Any idea what the differenceis between the Small, Summary & Oridinary Cases in Scotland's Sheriff Court ?

 

Sorry Ida if I am firing a lot of questions just now my head is spinning and just can't seem to stop its so mumble jumbled just now can't sleep, can't eat, can't think straight. On top of this my hubby is really unwell hoping to get him admitted tohospital this week for tests.

afw xx

[seriously fed up]

Hey slow down, or your going to explode before you get your moment in court. Easy for me to say? You bet. True, though, You bet.

Some immediate questions

 

1. when is the return date (this will be the earlier of the two dates on the document received from the court)?
   
2. when is the hearing?
   
3. can you get a copy of their claim up (minus your personal details)
   
4. let us know when the SAR comes up
   
5. Hennessy is very useful, and he deals with Summary Claims in Chapter 12. You should have the other side's claim, and at the end there should be a tear off slip which you should fill out and return to the Sheriff Clerk by the return date (the first of the two dates stated - the second being the hearing). Assuming you plan to resist the claim, you should include a brief statement as to the basis on which you intend doing so. This might be for instance "there is no executed agreement" - and as they have not produced anything with your sig on it, it might well be this. But this brevity will be to your advantage , as we only need an outline at this stage of why you will resist their claim - at this stage we dont need detail
   
6. by sending a blank application form they will claim they have fulfilled s78. Have they sent anything that has your signature on it? You have sent a SAR which is good and if the documents you have asked for dont arrive on time then you can ask the court to delay the hearing until they do (or if its not in good time - the day before for instance - till you have had time to prepare a defence using these documents). You would argue this on the basis that you cant construct a defence until they disclose. But you will need to put this to the court.
   
7. what is likely to happen? If they cant come up with anything else (a document that you have signed and ALSO which includes the prescribed terms - rate of interest, repayment arrangements and credit limit) they may try to blag it. That they have fulfilled s78 - pointing to Waksman's judgement in Manchester at the end of last year which allowed lenders to put out "reconstructions" (sort of "it looks like this") to satisfy a s78 request. But Waksman was very careful to distinguish s78 (what he called "the information purpose" -what is the agreement between us) and s61 (what he called the proof purpose". There is a well trodden path from s61 - which requires the prescribed terms to s65, which says that an agreement which doesnt satisfy s61 can only be enforced by a court, but the court cant do this because s127 (3) explicitly says that they cant. (google consumer credit act 1974 and you should be able to download a pdf copy - you'll need it. Also the 1983/1553 Regulations) They might add to this "here are a bundle of statements showing lending took place, now can we have our order and be gone". This would be completely wrong - BUT a Sheriff can only make a decision on the basis of what is put in front of him (or her), so you need to be ready with your counter argument. I suspect we have a decent amount of time so dont worry too much about that just now.
   
8. what do we need you to do? It would be a big help if you could put a up a copy of the claim form (take all your personal details off first). When your SAR comes back, tell us what is there - if they dont have a copy of your original application form then they should tell you this. There is also an issue about the hearing in relation to your SAR. They have forty days to reply so if this went off last wee, we are looking at something like the end of August at best (it should take forty days, but it can be longer), so you need to think about an IA to get the hearing delayed till they provide the documents that you require to prepare a defence.
   
9. two possible outcomes - delay granted, in which case we wait till the SAR comes through. Delay not granted
   
10. In this second case (or if the SAR produces nothing they can rely on in court) then you need to go in prepared to argue the court has no jurisdiction by virtue of s127 (3). They will come back with "ah but there was lending, she owes us". You need to point to what the law says.
    

Re your other questions the default registered in 2007, really they shouldnt. If you put it to the court they will say they did (I have one lot who when challenged about a default notice they hadnt sent, sent me another one saying "it looks like this" - it even had someone else's name on it). Might be a point worth making, but really not sure how far it will take you.

By sending out a DN in May, they prepared the ground to terminate now - which is what they have done with this small claims action.

Difference between the types of case is the sum that can be secured - small claims means they are looking for £3k or less from you.

Lastly, I think you have a pretty good chance. Someone else (try Moragh) said when she turned up at the hearing, their solicitor looked very fed up. This is because 90% of these just go through on the nod. They wont be expecting you to fight back, and if all they can produce is a blank application form then I think we can deal with that.

SFU

[24233513afw]

Hi SFU

 

Thank you for your reply last night (or should I say early this morning) it is greatly appreciated. Its so good to know that there is help out there on CAG I don't know what a lot of people would have done without this site..

 

I have read your post it must have taken ages to post up and I am really grateful somebody has taken the time to do this for me.

 

I shall try and answer all points as much as I can, so here goes.....

 

1. Summons Return Date 25/8/2010

2. Summons Hearing Date 8/9/2010

 

3. Here is a copy of the Small Claim Summons:

Page 1 Small Claim Summons

Page 2 Small Claim Summons

Page 3 Small Claim Summons

Page 4 Small Claim Summons

Page 5 Small Claim Summons

Page 6 Small Claim Summons

Page 7 Small Claim Summons

Page 8 Small Claim SUmmons

 

Also I have copied 2 letters and the Blank CCA from Creations that I received in APril 2009 1st Letter stating "Unfortunately due to a system anonmaly, a copy of the signed agreemnt cannot be retrieved.

 

1st Letter from Creation with Blank CCA

Letter

CCA Page 1

CCA Page 2

CCA Page 3

CCA Page 4

 

Received 2nd Letter from Creation again April 2009 stating "We acknowledge that whilst we failed to supply a copy of the original agreement we were not entitled to enforce the agreement as set out under 78 of the Act. We have not sought to enforce the agreement, however, interest continues to run and the debt continues to be payable.

 

2nd Letter from Creation

 

Received default Notice 14/5/10 dated 9/5/10 (Kept envelope) this is the only default notice they refer to in theie Statement of Claim

However have a default recorded on my Credit File at Experian for Sept 2007 (Never received a Default at that time). On th Statment of Slami page on Summons they only refer to the Default Notice I received in May 2010 nothing about any default in Sept 2010, when they also had DCA hounding me. Reported one of the DCA for harassment to OFT.

 

Default notice

 

4. As soon as I receive SAR I shall post up what I get.

 

5. Hennessy book - you say Chapter 12 deals with Summary Claims but this is Small Claim Summons and the book I have states Chapter 12 Small Claims is there a difference with Summary & Small Claim.

 

In the Statement of Claim in the Small Claim Summons they detail everything about me getting a card. spending the money and Owing the Money but nothing regarding a CCA....how convenient.

 

Hopefully I have ranted and raved enough for you to get the just of all this. Sometime it is difficult to function when all this and other things are building way above your head I am so gratefull for any help you can offer.

 

Enjoy the rest of your evening.

afw

Edited July 27, 2010 by 24233513afw
Few Errors

[seriously fed up]

OK thanks for all this

1 . that gives us four weeks to come up with a reply

2. and almost another two weeks to come up with a defence developing this

3. the summons puzzles me in that there is nothing in section 7, which is where their claim should be. Did they just attach the separate sheet (your 8th document in that group)? Basically, what they are saying in this claim is "money was loaned and we would like the court to help us to get it back". Their letter to you (at the top of the second group of uploads) is interesting since they have admitted that they dont have copy of the original. Of course the SAR might bring something out of the woodwork, but if not :lol:. If this is all they have, then - and their claim looks this way - they are going to argue "money was loaned, etc". What YOU are going to have to do is to prepare a defence at least partly based on s61 1a. This says "61.—(1) A regulated agreement (which is what you have) is not properly executed unless (a) a document in the prescribed form itself containing all the prescribed terms (rate of interest, credit limit and repayment details) and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner". (the parts in brackets in italics are my additions btw) What they have sent to you, even as a blank, falls down on there being no mention of credit limit contained in the document that they allege that you have signed (though interest and perhaps repayment are). They will come back with that credit limit is dealt with in paragraph 4 of page 2, and that its all part of a single document. But its not on the signature page and thus arguably only embodied and not contained. This leads us on to s65 (requiring a court order) but the court cant make an order as s61 (1a) - the signing requirements - have not been complied with because of s127 (3).

However, they have bigger problems than that, as even if the prescribed terms were written in foot high letters, they cant produce a document with your signature on it. Without this there is no executed agreement. And consider this - its from the Act of Sederunt 2009 (rules that govern what goes on in Sheriff Courts) it says this - "(2) After rule 4.2 (statement of claim) insert—“Actions relating to regulated agreements 4.2A. In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974 the statement of claim shall include an averment that such an agreement exists and details of the agreement.” (You can find this here Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009 No. 402). in other words when putting in their claim they should have avered (guarenteed if you like) that an executed agreement existed. But I would venture to suggest that the correspondence they have sent to you is some evidence (I say "some evidence" and not conclusive, merely on the off chance that they do come up with something) that it does not and moreover that they know it does not. Moreover, the averment that the executed agreement exists should be in the statement of claim. But its nowhere in that statement as far as I can see (or anywhere else). I would suggest that this might make the whole claim incompetent and should be dismissed on that basis.

So working back the way - we can argue

a. the claim is incompetent, as the other side have not avered that an executed agreement exists as required by the Act of Sederunt (as referenced above)

b. the other side admits in their correspondence with you that no executed agreement exists

c. the documents presented are not compliant with the signing requirements of the Consumer credit act s61 (1a) and the court is therefore prevented from issuing an order by virtue of s127 (3), which while now repealed still applies to pre-2006 agreements.

4. please do that - hopefully it will be before 28th of next month. If not before then we will need to look at an IA seeking a delay till they come up with the goods (after all they should have avered that the document exists so they should have no bother finding it)

5. Chapter 12 is indeed small claims and the one you are looking for - mea culpa.

 

In the meantime, just to give you something to do, it might be an idea to use the search facility on the site - you will find it on the same bar as things like "user cp, faq, calendar etc". Do a search on Creation on here - and maybe in Google - and see what you come up with. Its always a good idea to "know your enemy".

 

Lastly, yes they will go on about you getting the money, spending it etc. However - and this might well be the toughest part to be honest with you - you are going to have to be very tough, and very clear that you are in a court of law and not a court of morals. The opinion the Sheriff might or might not have about you is neither here nor there. His (or her) job is to apply the law and imo its on your side. But you need to be strong enough to ensure that the discussion doesnt lapse into "she got the money ....". Neither here nor there.