Bamk Charges/DCA/Court Action

[Stopthethieves]

If a DCA (who own the debt) issue legal proceedings against you which comprises entirely of charges, can I defend the proceedings on that basis?

 

I assume this is the case as they have bought the rightsand RESPONSIBILITIES for the debt??? Any info would be helpful...

[UnmoderatetheNet]

What is the latest with the Scottish case against RBS?

 

Could this argument be used?

[Stopthethieves]

Which case is this? Is there a thread on here?

[UnmoderatetheNet]

its he case of Jennifer Sharp against RBS which I believe proceeded to an Options Hearing heard in July 2010.

 

According to her lawyers there is likely to be a 'debate' (a court hearing on all of the legal arguments) which should take place shortly thereafter. Ms Sharp’s lawyers say this is necessary because the banks defence to a s.140A Consumer Credit Act (CCA) claim is to argue that the banking contract was not a regulated credit agreement. Bless.

 

The banks are also arguing that claims cannot go back before 6 April 2007. Why? Oh of course it costs them money.

 

The lawyers representing Ms Jennifer Sharp, Govan Law Centre, are unable to make too much detail public at this stage as the case is live, and they do not wish to prejudice the prospects of their client.

 

So lets sit tight and watch them wriggle out, but the fact this is being debated gives you some breathing space, there is a draft letter kicking about. Try the Govan law centre.

[Rayne]

u can read all about it here:

 

http://www.consumeractiongroup.co.uk/forum/oft-test-case-updates/248268-sheriff-puts-bank-scotland.html

[harrassed senior]

Would this apply to both Scottish and English law?

[Rayne]

Short answer is yes, although I don't recall the reasoning behind it.

[Stopthethieves]

So can I defend a County Court Claim by a Debt Buying DCA on the grounds that what they claim is less that what is owed in unfair charges???

 

In my case, any outstanding charges owed either are about the same or exceed the amount that the DCA say I owe. All remaining debts will be Statute Barred next year but if any seek a CCJ, can I defend it on those grounds?

Edited August 4, 2010 by Stopthethieves
Clarification

[Jasper1965]

So can I defend a County Court Claim by a Debt Buying DCA on the grounds that what they claim is less that what is owed in unfair charges???

 

In my case, any outstanding charges owed either are about the same or exceed the amount that the DCA say I owe. All remaining debts will be Statute Barred next year but if any seek a CCJ, can I defend it on those grounds?

 

Yes.

 

Under the Law of Property 1925 ** any assignment is subject to equities, the unfair charges are equities under the assignment since they existed prior to assignment of the account.

 

The way to go is to claim the full amount of unfair charges plus interest thereupon as setoff/counterclaim as an equity under the assignment . Here's a quote from insolvency.gov website "the assignment will be subject to existing equities (ie the debtor party may raise against the assignee any defence, set-off or counterclaim which he could have had if sued by the assignor, provided that the matter on which the defence or counter claim is based arose before notice of the assignment was received)." Link (31.9.29)

 

 

 

** Of course the assignment must be absolute but hey they wouldn't take you to Court in their own name (the DCA) if it weren't would they?

[Stopthethieves]

That's sounds good. I believe Capquest may of sought a CCJ against me at an address I no longer live, I haven't actually verified it as it would alert them to me. I do know that it is for £299.99 if they have but the charges etc must be about £1000+, not that I would actually receive this anyway. Gonna wait til it goes statute barred and then seek a set aside if a CCJ is out there!