Default Judgement entered due to late return of AoS - whose to blame what to do

[Bigdebtor]

Surely that would make it a TN? However if the first DN wasn't satisfied then they might be entitled to issue a TN straight away?

 

BD

[scrible]

Hi guys - bigdebtor I'm not exactly sure what you mean. The date of the letters and the date that the arrears needed to be paid are greater than 14 days if thats what you mean.

[scrible]

This is the letter that pt2537 suggests should be used in order to obtain the original signed copy of the agreement. Does anybody think there would be any merit in sending this to the dca bearing in mind my case is next week or would you hold fire until the judge grants set aside. My problem is I'm not sure set aside will be granted and he may grant the dca the charging order.

 

 

 

Dear Sirs

 

Account number

 

I write with regards to the above account with your organisation.

 

I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.Additionally i require the underwriting sheet or other document showing any commissions paid to you by the broker or by you to the broker

 

(If you have any other reasons why you need the agreement such as misselling of PPI Add it here)

 

obviously if the agreement is improperly executed i would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which i have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

 

I look forward to your reply and wouyld ask for a response by 4pm on XXXX Date ( Give 21 days to respond)

 

 

Regards

 

 

 

xxxxxxxxxxx

[scrible]

Back from court. Set aside dismissed. Charging order allowed. Reconstituted agreement fully accepted by judge.

[Bigdebtor]

Sorry and surprised to hear your news.

 

I am really amazed - when no signed original has been produced. Thank God I live in Scotland where this situation would not have been enforced by the court without the original signed agreement being produced.

 

It would seem the Judge doesn't understand exactly what the Carey judgement said - and may have been totally misled by Restons.

 

I hope someone (like PT?) can advise further if you can appeal in any way.

 

BD

[DonkeyB]

Whaaat? Judge is wrong. Carey is clear. Time to appeal.

[scrible]

Am I able to appeal? Nothing was mentioned. It was made very clear by the judge that reconstituted agreements were acceptable now. He was willing to offer us set a side, however in his view we had no case and therefore set aside would have been pointless.

[Bigdebtor]

He doesn't understand what the Carey judgement actually was. Google it: Carey v HSBC et all 23-12-2009 - and you'll see it was to do with S 77/78 requests and NOT enforcement of debts where the original signed CCA was missing.

[DonkeyB]

Whaaat? Judge is wrong. Carey is clear. Time to appeal.

 

Yes, you are AFAIK. But I would suggest you seek some legal advice at this stage – a judge will take much more note of a barrister or solicitor than an LiP, I’m afraid. Sad fact of life. The judge has misdirected himself, and his reasoning was factually wrong, IMO.

[AndyOrch]

Absolutely disgraceful.Im appalled I hope all Caggers understand now why the Carey case was.To move the goal posts because the financial institutes were losing to many cases.The magistrates and DJs need to be re educated, sorry to hear your result Scrible.Pay them a £1 a month by cheque.

 

Regards

 

Andy:mad2:

[DonkeyB]

I agree Andy, it’s getting out of order.

 

These judges need the facts of the Carey judgment ramming doen their throats. It’s the only language their type would understand.

[Bigdebtor]

Surely if Restons have wrongly stated what Carey was all about they should be charged with PERJURY? Restons specialise in the CCA type of cases - so should have their facts right and not be involved in perverting justice like this.

 

I'm shocked that Judges can be so IGNORANT of the difference between complying with S 77/78 and having an enforceable agreement - but they are so removed from real life they think every debtor is a feckless dodger. I remember one Judge in the mid sixties asking "who are the beatles?" and HRH The Prince Philip getting mixed up and talking about "Indians" when he meant "Cowboy" builders.

 

These wealthy people (either highly paid or living off inherited wealth - or both) are so far removed from reality it makes me really worried - but now we've got more of them in the Cabinet than at any time since the mid fifties , how can we - the great unwashed - expect any different treatment from that given out today?

 

Perhaps it's time to have specialist "debt tribunals" along the lines of the current Employment Tribunals with ONLY suitably qualified and knowledgible judges?

 

BD

[scrible]

Andy unfourtunatley I would however the charging order was approved.

[scrible]

Does anybody here think I should start a new thread with regard to the judgement made in my case and to the fact that a reconstituted agreement is perfectly acceptable according to the judge. I believe that it may have serious consequences for many readers of this site who think that the original signed agreement must be produced in court.

[DonkeyB]

I would keep it on this thread so we have the background, and ask a mod to change the title to something more suitable.

[PriorityOne]

 

 

I have no reollection of when, where or how this account was opened and I have no recollection of ever having received an agreement nor what the opening credit was.However, I did utilise a GM account facility and I made regular monthly payments as required.

 

Following a change in my financial circumstances and subsequent conversations with various advice organisations I was advised to request details regarding all my finance accounts (overdrafts, mortgage, loans, credit cards etc) (attachment2).

 

With regard to HFC, I requested a copy of my original agreement along with the terms and conditions in order for me to assess my situation.

HFC have not been able to supply a valid CCA as per my request and instead supplied a blank copy of an application form.I therefore ceased payments inaccordance with the advice I received from various consumer organisations. I have made the same request on many occasions and have received nothing to date.

 

 

 

 

That's a terrible Defence Scrible.... sorry... especially the above extract. You've effectively shot a hole in your own Defence by stating that you spent the money. The crux of your argument (in an Appeal) needs to be based on the lack of a properly executed Consumer Credit Agreement (CCA 1974).... and therefore that the account should not have been re-enforced under sec. 127(3). Reconstituted Agrements are not acceptable under CCA 1974 but in the absence of an Agreement under CCA 2006, creditors can refer to payment history, which I think is what's happened here.... and the Judge has gone with it, along with the Carey tosh. Your account doesn't fall under CCA 2006 though.

 

Can somebody please clarify for me if it is normal to receive 2 DN's for one account.

 

You shouldn't unless the first one was rectified.... although I know it goes on. HFC also tried this one with me and it was the basis of a formal complaint under the Data Protection Act. They then backtracked and tried to say it wasn't really a 2nd DN but merely a "letter".... and then got shot of the account very quickly afterwards by Absolute Assignment.

 

My advice to you would be to try and get a solid Defence together if you're going to Appeal this. There are people on these forums who can help you with this and although I'll do what I can... Defences are not my area, as such. I'm happy to check through any wording you may want to use as part of a Defence though...

[Bigdebtor]

In my view just denying any debt ever existed is unlikely to endear a debtor to a creditor-friendly judge - as clearly there are records of payments being made by the debtor and (in a credit card or debit card debt) evidence of spending on goods and services by the debtor. How does one justify this other than claiming every payment by either side was simply a "gift" to the other?

 

Whilst I have never had to get as far as a court room (so far - touch wood!) my thoughts have always been if a creditor-friendly judge asked me "Did you get this money from the creditor?" I would ensure I had done my homework carefully and my reply would be "According to my records and information provided over the years by the creditor, I have been advanced a total of £x by the creditor and I have paid the creditor a total of £y (which is more than £x). In my opinion I have therefore repaid the total advanced by the creditor over time and more - and I assume the excess of £y-x consists of charges and interest. However since I do not have a record of what interest, charges and T&C's were agreed initially and modified over time I need to have a true and full copy of my own specific agreement and all subsequent amendments to ascertain if I have paid ALL interest due - or if there an outstanding (to either party) - and also to ascertain if any of these charges paid are fair and legally enforceable - or if such charges are unfair, representing more than the actual costs or loss incurred by the creditor due to any late or missed payments. I believe that is why we are here today - to establish in law whether there is still anything outstanding to the creditor that I am obliged to pay or not"

 

I can't see how that sort of statement could lead to the judge saying "you've had the money - now pay it back" - but I have frequently fallen foul of expecting the law to be in any way related to common sense and logic - and to deliver "justice" - such as last November's SC rulling, the recent Brandon verdict etc.

 

I hope something like this might be useful to clarify the "admission of debt" already made by scrible?

 

Good luck anyway scrible!

 

BD

[scrible]

BD - I got this on my phone and wanted to reply to it on the forum but have just realised I think you may have posted it to my previous thread. Can you resubmit it to the current thread and I will reply.

 

tks scrible

[Bigdebtor]

Can you give me a link to the other thread if different?

 

BD

[scrible]

Here you go http://www.consumeractiongroup.co.uk/forum/showthread.php?285616-**WARNING**-quot-Reconstituted-quot-CCA-perfectly-acceptable-says-Judge(10-Viewing)-nbsp

[PriorityOne]

BD... payment history is irrelevant under CCA 1974..... but can be referred to under CCA 2006. That's the difference.

[Bigdebtor]

P1

 

I agree - but we need to be prepared for a Judge who doesn't know this difference (as well as lots of other things he/she should know!). That's why I think a statement along the lines of the one I suggest - showing that the original debt and all supplemenatray amounts advanced HAVE been repaid with (some) interest could be a life saver - and avoid the simple (and wrong) verdict -" you had the money - now pay it back" which it seems is what has (wroingly) happened to many people post Carey.

 

BD

[PriorityOne]

P1

 

I agree - but we need to be prepared for a Judge who doesn't know this difference (as well as lots of other things he/she should know!). That's why I think a statement along the lines of the one I suggest - showing that the original debt and all supplemenatray amounts advanced HAVE been repaid with (some) interest could be a life saver - and avoid the simple (and wrong) verdict -" you had the money - now pay it back" which it seems is what has (wroingly) happened to many people post Carey.

 

BD

 

You need to be very careful what you say.... and this is not advisable at all. If you are disputing the amount claimed in the POC, then state your reasons why. If, for example, unlawful charges have been added to the amount claimed, then this could invalidate the claim. If the DN is innaccurate or unavailable, this could also invalidate the claim..... unless the creditor tries to reconstitute a DN? At want point in time would the creditor be reconstituting it and why? Proof, proof and more proof; the burden of proof needs to be placed on the creditor/DCA at all times.

 

I'm not sure I understand what you're saying; since if the debt's been paid (with interest) as you say, then what's the basis of their claim anyway?

[Bigdebtor]

Most people who have had credit cards for donkey's years will have more than repaid the amount of any original or subsequently increased credit limit. With monthly compound interest of over 2% per month their debt would double every 3-4 years otherwise - which would not have been permitted. Therefore any balance left outstanding will be interest and charges. The question is - are these interest rates and charges levied ove rthe life of the account exactky those as agreed by the debtor, justifiable, legally due and enforceable?

 

I don't understand why setting out EXACTLY what HAS been advanced and what has been paid is not advisable - it is after all only the truth, and should be available from OC records in any case. If they can't provide all this after a SAR then their case must be weakened substantially - and should probably be thrown out since it's quite possible further repayments were made in the missing statements.

 

IMHO the key thing is to establish whether ALL funds advanced by the OC have been repaid - if so, then anything else paid in excess of this must have been paid to cover interest and charges demanded by the OC (whether with or without legal authority to do so) - and whether the balance outsanding is payable - or not - will depend on the EXACT T&C's AGREED over the life of the account.

 

If I only ever agreed to 0% apr - then in the above scenario there will be a balance due to me. If I agreed to say 15-20% apr then there will be a balance due to the OC. By asking the question I would be forcing the OC to PROVE what apr I DID agree to and to prove every time it was varied. If they don't have this information (as required after Carey judgement) they CAN'T prove I owe them anything further - and I have avoided the "you've spent the money - now repay it" line being used by out of touch judges.

 

I really don't see how that can hurt?

 

BD

[PriorityOne]

I think we're on the same wavelength BD; it depends what you're going into court to fight. If you're querying the amount that the creditor is re-claiming, then your scenario sounds right... and you would be defending the claim on those grounds.... but if you're disputing the entire debt on the grounds of unenforceability, then it would be contadictory to say that an amount have been repaid with interest. That's why it's important that any Defence is worded in line with the POC from the Claimant.