DCA / Goldfish & Egg / combined the 2 debts into one alleged sum of money.

[spamheed]

Can you type up the Particulars of claim (POC) as stated on the claim form, this is what you will initially need to defend against

[spamheed]

"The Claimant is the Assignee of a Debt(s)from

Goldfish Bank Ltd

Credit Card reference xxxxxxx, Do you recognise this reference?

Egg Banking Plc

Credit Card reference xxxxxxx, Do You recognise this reference?

Notice of Assignment having been given to the

Defendant in writing. did you receive such an assignment?

Despite demand for Payment, 24342.64 remains due. Do you recognise this amount, does it appear to be correct?

The Claimant claims 24342.64 and interest under

s 69 County Courts Act 1984 and costs."

 

The purported "Credit Card reference" is a 7 digit number, which is not a credit card number.

 

Have you ever requested copies of the agreements for these "accounts"?

Have they sent you a breakdown of how the amount claimed has been arrived at?

 

You can use CPR31.14 to request copies of any documents referred to or mentioned in the POC

For those that aren't mentioned in the POC, you can use CPR 18 to request further information on them

[spamheed]

I understand where you are coming from but this is less to do with what they have done and more to do with what they are claiming.

 

There have been cases where multiple accounts have been consolidated and brought before the courts and judgements have been given because the case wasn't defended correctly or the defendant was unprepared.

 

The initial defence is merely with regards to matters within the POC, hence the line of questioning.

 

You need to use the legal processes and relevant CPR against them

[spamheed]

On 23rd November 2010 OFT stated that chasing debtors without proper investigation of the issues constitutes a breach of the OFT's guidance on debt collection.

Are you saying that this clarification of OFT debt guidance would have no effect in my case.?

- My case being that the Claimant DCA continued to chase me without proper investigation of the issues which arose in the dispute between myself and the original creditor.

It cannot be the case that those issues can be left uninvestigated just because the creditor sold the disputed debt to the Claimant.

If that was the case, that would provide a magic escape route for every creditor who has a dispute originated by a debtor. - he could offload every disputed agreement just by selling it to a DCA. That's exactly what it does in most cases, they simply wash their hands of an errant debtor, write off the amount for tax, make a small return by selling on the account for coppers and then move on

 

 

The OFT guidelines are not binding, they are "only" Guidelines and compliance is not mandatory and neither does their non compliance carry any penalties in law. it may affect their licence application but when it comes to the big companies, it never seems to have any adverse effect.

 

However, when building a defence against a claim, demonstrating a total disregard for the OFT guidelines by a creditor or Debt Collector/buyer can demonstrate the manner in which a company carries out their business and can sway a judge

[spamheed]

Surely, if a creditor sells a disputed debt to a DCA, that can be considered to be "not ceasing collection activity", because the sole reason the DCA would buy the debt would be to obtain the alleged outstanding debt from the debtor. - That is surely debt collection activity. And the original creditor and the DCA would both be implicated in continuing to carry out debt collection activity, thereby breaching the OFT debt guidelines.

 

If the Original Creditor "sells" a debt - any involvement with the debt or the creditor ceases as far as they are concerned and most of the financial institutes do this to distance themselves from the nastier side of the collection business, they are concerned with their reputation much more than a (relatively) small amount.

 

They cannot be held liable for the actions of a DCA or Debt buyer when the debt has been "sold". although there is a limited argument about selling on a debt whilst there is a dispute. they normally just deny the existence of a dispute and then it's your word against theirs.

 

Whilst you have a semi-valid point about the collection process not being ceased, the law see's it differently and as stated earlier they are "only" Guidelines.

 

There have been a lot (far too many) of cases where a judge has simply said, you borrowed it, now pay it back - judgement for the claimant.

 

You could argue yourself black and white, but they will still be taking you to court and if you do not defend correctly, you will still end up with a judgement against you. Nickleas post should be considered a little further.

 

The defence starts with the POC, the CPRs are there to govern the whole county court process, you need to see the documents they are relying on, Disclosure will enable you to start to build a defence

 

Below are two stickied links which cover the first steps in defending yourself

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?108467-Basic-Introduction-to-Consumer-Credit-litigation

http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

[spamheed]

Without seeming overly glib or dismissive of your arguments, if this is the crux of your defence, then I wish you good luck with it.

 

My opinion, such as it's worth, is that you are pi$$ing in the wind by arguing that "they should have done this, or that they should have done that"

 

I do however wonder why you ask questions on a forum and then argue with those who would offer you advice.

[spamheed]

I take your point. But are you saying that it is legally permissible for a credit card provider to terminate a credit card agreement in breach of the provisions of the Consumer Credit Act 1974, and in breach of the Consumer Credit (Agreements) Regulations 1983?

 

You need to make them prove that they had a right to do what they have done, from there you will be able to see if you have a defence or not.

 

I would suggest in the first instance utilising CPR31.14 for the documents mentioned in the POC and CPR18 for those which are not

[spamheed]

Thanks for that useful information.

I will certainly follow that up. Do I have to apply for a court order to obtain CPR18 info? I notice it say that "the court" may order a party etc.

 

No you do not need to involve the court with regard to CPR 31.14 or CPR 18 at this stage these are just letters you would send to the claimant or their representatives in order to get them to disclose the information you require to build your defence. There are template letters, but they really aren't one size fits all, I would generally use them only as a guide and heavily edit them to your own words and to fit your own circumstances.

 

The following thread provides an excellent guide of the court process, it is quite lengthy but with good reason, I would suggest you have a look at it, just to gain an insight into the process and what you need to do.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

 

In the following thread there is a discussion on the difference between CPR31.14 and CPR18 and provides explanations on both, as well as links to the relevant statute(s)

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?184213

 

Ask any questions on any thread you feel is appropriate.

 

Please be patient as a lot of the regulars will be unavailable due to the current festivities, you should have a look at as many of the threads as you can and you will quickly see that there are a huge number of people in exactly the same boat as yourself and also that the Debt Collectors appear to sail through the rules and regulations with apparent impunity, These people are not stupid and when it comes to the court room they have shown that they are not above bending the facts to influence a judge.

 

You really need to do your homework and gain a clear understanding of how your defence is to be/has been constructed.

Edited December 26, 2010 by spamheed

[spamheed]

My pleasure

 

They are a little convoluted and sometimes difficult to get ones head around - but the best legal arguments and biggest wins on here seem to come from those who understand and use the system to their greatest advantage. and given that the phrase "judge lottery" is becoming more and more prevalent, it is becoming very obvious that if you can't persuade the judge who isn't aware of consumer law that your arguments are correct, then the other side will and judgement will go to the claimant (again)

 

Try not to let it take over and enjoy the rest of the holidays

Edited December 26, 2010 by spamheed

[spamheed]

Thanks for that info Tingy.

It's difficult to to fully understand the points you raise without knowing exactly what sort of agreement was in dispute.

For example, did the dispute concern a credit card agreement which was in default?

 

I fail to see any relevance in this argument, or any merit in its continued and quite protracted discussion.

 

If we are here to assist in the compilation of a defence based on all evidence available then fair enough, however, if we are here to bang heads in an attempt to get everyone to agree to a defence hinged solely on an individuals interpretation of s98 which would fall apart under even the vaguest of scrutiny then I will take my leave of this thread without further comment

[spamheed]

The document you are looking for is the "Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983", a copy of which can be found here

opens as a pdf file - you might want to look at schedule 1 for clarification on non default cases

 

2004 amendment here

 

opens a pdf file

Edited December 29, 2010 by spamheed
fixed link

[spamheed]

I hate to say it, but IMHO a dodgy or defective or non existent TN, and/or DN will not be enough, no matter how many breaches it/they contain. I know what you are saying, that they had no right to just terminate and should have gone through the correct process, but what if it boils down to the judge asking you if you borrowed the money?

 

The fact that they have broken guidelines will not sway a judge in the slightest as they are only there to give judgement under the law. It has happened all too often that a judge has asked that very question and when you answer truthfully and say "Yes" that's it - you've lost

 

On this forum and on many others, there are scores of cases where the judge has given judgement for the claimant where the defendant had a much stronger defence based on no agreement or even where the debt didn't actually belong to the defendant, judges are now regularly accepting recreated and manufactured agreements in the court and I think unless you had a an incredible stroke of luck with the judge on the day then you would lose.

 

It is only my opinion and I always stand to be corrected, but even if you do rely on the default and termination arguments as a part of your defence - You should still look at the wider picture and not focus on this single area - it is always better to completely destroy every aspect of their claim rather than rely on one area where there is even the slightest doubt - I really believe that you should look at other areas to strengthen your defence.

Edited December 29, 2010 by spamheed

[spamheed]

I have never denied that I borrowed the money, and that is not part of my defence.

They assigned the debt to Cabot who is the claimant.

 

In response to the above statement, since the fact that you owe the money is the crux of their claim, why does it not come into your defence?

 

Have you even looked into the assignment? without an assignment how can you owe Cabot anything? have you looked into charges and interest? being an Egg claim, is there PPI showing on the agreement, is the amount on the claim form correct?

 

This appears to be going around in circles - Once again you focus on only the termination and maintain that the stance you are taking with your defence is 100% correct and then ask for advice/confirmation that you are correct. when an opposite opinion is posted you then argue the merits of your pre-stated defence.

[spamheed]

My defence is that the money is not owed to the claimant. If any money is owed it is to two original creditors, who assigned the debts to the claimant, in full knowledge that the debts were disputed. which is not unlawful, it may be against the OFT guidelines, but this in itself is not unlawful, if your judge say (as many others have) that "on the balance of probabilities there has been an assignment and it has been performed in line with LOP" your argument fails, have you obtained any of the documents pertaining to the assignment from the claimant? - either Notice of Assignment (from Egg) or deed of assignment (from either)

 

At the allocation hearing the judge ordered the claimant to provide witnesses from the two original creditors. - I am thinking about adding the two original creditors as party to the proceedings. If a representative from the bank appears (or more likely provides a witness statement) and states quite clearly that "this" is what happened,

 

They also state that it was all completed correctly and completely in line with the terms and conditions of the bank and here is the policy which covers this action for this type of credit and then goes on to produce a document containing their terms and conditions in support of this (which they will)

 

- what you going to say in response to that? - that the witness is wrong and the document is wrong and the policy is wrong? etc and so on - how you going to underpin your argument that "they" are wrong? - it is then nothing more your word against that of a large financial institution.

 

This isn't about you having the opportunity of arguing points of law with the bank, the judge wouldn't allow that, this is about who can persuade the judge that their argument is soundest.

 

I have looked into the assignment and I consider it to be unlawful, have you obtained any other opinions which concur with your own?

 

For example, I mentioned that the original debts were in dispute - this is not unlawful - as stated it is merely against OFT guidelines.

 

Depending on the outcome of those disputes, which have never been addressed in any way by the original creditors, or by the claimant. You have a point - the debts were in default, but which laws and/or statutes were broken and how have you been prejudiced by their actions?

 

No. The claimant has simply arbitrarily aggregated two unrelated debts, and claimed that I owe the claimant that amount. - there exists no written agreement for the debt allegedly owed to the claimant. He has never informed me that I owed him that amount. - he simply put it into his POC. and this is where (IMHO) you need to direct your defence

 

I am looking forward to meeting the witnesses from the two original creditors - That could blow up in your face grandly if you do not have the evidence to reinforce your own argument.

 

IMHO you still need a lot more

 

I would suggest looking a lot more closely into the assignment, get copies of the Noa and Doa - check any dates - a mismatching of dates and their case fails and it is entirely possible that they will do as they did with me and, in all probability they'll send you by way of a Deed nothing more than a heavilly redacted document which proves nothing by way of assignment. it's not a case winner on its own but in undermines their claim

 

Check closely both agreements, point out which terms they have broken, or better still see if either has a T&C which directly conflicts with the other. do either (both) agreements include any element of PPI - did you request it? have you claimed for it and been refused? were you self employed? if the PPI was missold it won't necessarily win the case outright, but it would rubbish the amount stated in their claim

 

Are the % rates the same on both agreements? No? then how can they be sure that the % applied to the amount claimed is correct

as above, possibly not enough on its own but it proves they are making it up as they go along

 

The amount claimed on the POC? - have they provided you with a breakdown of the amount, with agreements, terms and conditions and full statements of account for each account and also for the amount claimed on their POC? if the amount is proven to be incorrect their claim is dead

 

The answers to all these (and probably a lot more need to be found way before you get anywhere near a court and certainly before a judge sees your defence. and more importantly you will have documentary proof which will be supported by statute and law (which they have also breached)

 

They can and should be made to disclose all of this information to you before the trail to allow you to build a defence.

Edited December 30, 2010 by spamheed

[spamheed]

I submit that whether that term is unfair or not is not an entirely different matter. - it is the heart of the matter, and it would be for the court to decide whether it is unfair within the meaning of S140. of the Act. but in itself it's not unlawful, the court will normally decide based on the law and only after that will they look into the fairness of it

 

As you have asked me directly, I took high court action against a high street bank as a litigant in person, which I lost.

However, the first words of the judge were "I am here to do justice". You might find it hard to believe, but he wrote off my liability of £136,000, and did not allow their costs. if the judge wrote off your liability then this would have meant that you won, so costs would never have been awarded to the "losing" side

My legal advice was pro-bono.

 

Nobody is doubting your intelligence, or your integrity, or your level of knowledge, or your experience. it is all about the defence, at the start of this thread you had pinpointed one area to the enth degree on which you were going to defend your case. this IMHO was a mistake which can be quite simply remedied (with an open mind), you need to try to utilise every available option and create enough doubt in their argument to sway the judge

 

I do not believe that a court would ignore the principle embodied in that OFT statement.

 

Would you really want to gamble on this?

[spamheed]

I get the distinct impression that everything advised is falling on very deaf ears. This is becoming circular and quite pointless

 

Since I have never been to court and had huge amounts of debt written off, I would have to concede whatever point it is that you are trying to make.

Also, since you have made it abundantly clear that you know better than everyone else and that your way is the only way a defence should be compiled

 

I shall take no farther part in this.

[spamheed]

Banging my head hurts

Edited January 1, 2011 by spamheed

[spamheed]

Banging my head hurts

Edited January 1, 2011 by spamheed

[spamheed]

Banging my head hurts

Edited January 1, 2011 by spamheed

[spamheed]

Banging my head hurts

Edited January 1, 2011 by spamheed

[spamheed]

Banging my head hurts

Edited January 1, 2011 by spamheed

[spamheed]

I am formally nominating Nicklea to be made a saint for her services to Toymaker and her endless patience with someone who seems to be on here just to antagonise, thus drawing some sort of perverse pleasure from their endlessly repeated, extremely boring assertions over and over and over and over again when nobody else agrees with the OP.

 

SAINT Nicklea - I salute you!:whoo::hail::lol:

 

In fairness, I think the OP's arguments surrounding the termination and default hold some merit, just not as much as he believes, or in the manner. IMHO the OP's focussing on what seems to be an untenable defence is a mistake

 

The fact that they sent him a default after termination is worth mentioning, as is the threat to terminate after the account had already been terminated would indicate that the paperwork may have been c@cked up and should be examined asap. The initial termination appears to have been concluded correctly, but the the assignments, the agreements and the amount claimed, plus if any, charges and PPI should be examined, very closely but by someone other than I