Aktiv Kapital & their hounds

[AndyOrch]

You can apply for a time order after your creditor has taken you to court by using a general court application form called an N244 There will be a fee to pay with your application unless you do not have to pay the fee. You need to include full details of your circumstances and a full personal budget sheet with the application. There will be a hearing where the creditor can object to the time order being made. The district judge will decide whether to make a time order in your case.

If the creditor started action against you in a county court elsewhere you may need to apply for the case to be transferred to your local county court.

 

Is it 'just' to make a Time Order?

 

Make sure you add any points that may help the court decide that you case is "just". Remember: the court must look at the creditor's position as well as your circumstances.

• Was the reason you took out the credit a "good" one?
  
• Could you afford the payments when you first took out the agreement?
  
• Is your agreement very expensive or not appropriate for your needs at the time? Point out a high interest rate and how much you would have to pay back over the whole loan period.
  
• Have you taken out further credit since? If so, was there a good reason for this?
  
• Have you had a good payment record until the point you stopped paying?
  
• What is the reason for your non payment? Have your circumstances changed? Explain the background to your situation.
  
• Have you tried to sort out your problems and ask the creditor for a payment arrangement? (e.g. you haven't ignored the debt). If the creditor has refused to negotiate you need to point this out. Start making the payments you have offered as a gesture of good will.
  
• Is your situation temporary and likely to improve in the future? The court is likely to want to make a time order for a time limited period.
  

Regards

 

Andy

[Ilike banks]

Looks like the time order is a last resort before a ccj then. Can't see things improving particularly in the near future although I do do the lottery occasionally,

 

Further to one of your earlier posts Andy, I am pretty sure we have never received any arrears notices either, just payment demands from the agencies.

[AndyOrch]

Who is the Claimant on the Summons ?

[Ilike banks]

AK Asset Investment

[AndyOrch]

Have you detailed the P.o.C or if not can you verbatim (less any identifiable data)

Point me to the post if you already have I LIke.

 

Andy

[Ilike banks]

36

The claimant claims the sum of XXXXfor debt and interest. The defendant was indebted to Egg Banking PLC

for credit advanced. The debt was assigned to the claimant. Notice of assignment was given to the defendant.

AND THE CLAIMANT CLAIMS

1. The sum of xxxxx

2.Statutory interest pursuant to Section 69 of the County Court Act 1984 at a rate

of 8.00% per annum from xx/xx/xx to xx/xx £xxx, & thereafter at a daily rate of

xxx until judgment or sooner payment.

 

 

 

 

I think this is what you need Andy. Once again, I am sure that they did not send me any NOA.

[AndyOrch]

Thanks ILB

 

Jump over to Tinks thread, I have just posted on his P.o.C (exactly same as yours).

Read what I have stated about the process of defences.

 

Regards

 

Andy

[teaboy2]

36

The claimant claims the sum of XXXXfor debt and interest. The defendant was indebted to Egg Banking PLC

for credit advanced. The debt was assigned to the claimant. Notice of assignment was given to the defendant.

AND THE CLAIMANT CLAIMS

1. The sum of xxxxx

2.Statutory interest pursuant to Section 69 of the County Court Act 1984 at a rate

of 8.00% per annum from xx/xx/xx to xx/xx £xxx, & thereafter at a daily rate of

xxx until judgment or sooner payment.

 

 

 

 

I think this is what you need Andy. Once again, I am sure that they did not send me any NOA.

 

Strict them to proof that the NOA was sent as per section 196 (4) law of property act 1925 and was absolute as per section 136 law of property act 1925.

 

section 196 requires it to be sent registered post and section 136 requires, for assignee (DCA) to be legally entilted to the debt, that the NOA was written and sent by the assignor (OC) to the alleged debtor and not sent by the assignee (DCA).

[Bigdebtor]

As said earlier. NOA should be sent RD - but they never are - and there are many cases of a judge saying "well - you admit you got it - so doesn't really matter if RD or not"

 

In YOUR case J&P are claiming it WAS sent - so if you keep denying you got it then it might buy you something - as they should be asked to PROVE it - by your signature on the Royal mail RD paperwork. If everything you have looks as if it came from microfiche or Computer printouts - (i.e not a photocopy of the original CCA) then I would do a CPUTR 2008 (see PriortyOne's thread on this) as it might just get everything put on hold. Have you looked at the Carey judgement regarding what should be sent in response to a CCA request? You probably haven't got half of what you should have got - especially if the T&C's were ever varied.

 

I also have an AK debt they bought from Egg - but they have currently gone quiet as they can't find the CCA (which I asked for in Dec 2009!) and Egg haven't complied woith my SAR request (sent to Egg in Oct 2009!). I got a dodgy "NOA" from AK by ordinary post - not even on official letter head, no details of my specific account etc. - if it comes to it I'll ask them to prove it was actually sent RD and signed for at my end.

 

AK's incompetence got me off an £11k Morgan Stanley cardit card debt which they had bought in 2006/2007 - but never ever chased up - other than a single letter saying they now owned the debt and could I please pay them now and not Morgan Stanley! This debt became time barred in Nov 2010 - so it might be worth playing a long game - and see if they drop the ball?

 

Good luck!

 

BD

[DuffNCustard]

36

The claimant claims the sum of XXXXfor debt and interest. The defendant was indebted to Egg Banking PLC

for credit advanced. The debt was assigned to the claimant. Notice of assignment was given to the defendant.

AND THE CLAIMANT CLAIMS

1. The sum of xxxxx

2.Statutory interest pursuant to Section 69 of the County Court Act 1984 at a rate

of 8.00% per annum from xx/xx/xx to xx/xx £xxx, & thereafter at a daily rate of

xxx until judgment or sooner payment.

 

 

 

 

In all the response that they sent to your SAR is there any mention at all of statutory or contractual interest and the fact that EGG will apply it if you default on the debt? if there is not then you should dispute this irrespective of what else you defend or dispute.

 

If the agreement they have sent you a copy of is a generic one and they use words like 'they would have' then you counter by stating that their failure to produce the original document leaves you unable to audit their claims - you have a right to be able to audit all charges

[Bigdebtor]

DnC

 

Very good points there! I've hit your star!

BD

 

PS - I note you've been in CAG since Sept 2008 and only made 84 posts? With great advice like that to give you should be posting more often - and also climbing up the green blob ranks!

[AndyOrch]

Responding to your PM I Like.

 

The fact that they have disregarded your request re NoA would appear the be a sticking point

I would not advocate chasing that one exclusion (at this stage) but try to concentrate on building a defence

with this inclusion and also the behavior of the Claimant in bringing this claim.

 

Regards

 

Andy

[TINK660]

ilike banks,

 

Did you not get an NOA either?

[Ilike banks]

Nope, just the same guff I had been sent already.

 

Where are you at now? PM me is maybe best!

[Ilike banks]

ilike banks,

 

Did you not get an NOA either?

 

Pm'd you Tinks

[AndyOrch]

Guys if you conduct everything through PMs you are really isolating yourselves from the Forum

and will not receive any input..

 

Andy

[Ilike banks]

Point taken. Sorry.

[Ilike banks]

Re: your advice above regarding the building of a defence, should I basically follow this route -

 

1/. Refute the premise that there is a debt to Egg by virtue of a non compliant agreement.

 

2/. Bring into play the agreement was put into dispute after ARC's and Moorcrofts failure to comply with my CCA request.

 

3/. Whilst the CCA request remains in default they are not able to pass the debt on or pursue it.

 

4/. I have never recieved any AS's

 

 

5/. I have never (as far as I am aware) received a DN.

 

6/. I have never been issued with a NOA as per the requirements of the 1925 Property Act and that the solicitors, despite being asked to furnish a copy under CPR31.14 have not supplied.

 

 

 

With reference to this thread : http://www.consumeractiongroup.co.uk/forum/showthread.php?309473-Advice-needed-on-court-summons/page2 - do I contact the solicitors again to request the NOA? under CPR31.14

 

Is there a method whereby I can force them to provide (or not) valid DN and Annual statements?

 

Sorry for all he questions, but I need to get a bit of a wriggle on here as time is running out!

[AndyOrch]

Re: your advice above regarding the building of a defence, should I basically follow this route -

 

1/. Refute the premise that there is a debt to Egg by virtue of a non compliant agreement. Risky unless you know your agreements and are prepared to argue its deficiencies

 

2/. Bring into play the agreement was put into dispute after ARC's and Moorcrofts failure to comply with my CCA request. Valid point

3/. Whilst the CCA request remains in default they are not able to pass the debt on or pursue it. Valid point

 

4/. I have never received any AS's (ANs Arrears Notices) only valid if they are trying to claim interest

 

5/. I have never (as far as I am aware) received a DN. Worth mentioning but not a requirement your word against theirs

6/. I have never been issued with a NOA as per the requirements of the 1925 Property Act and that the solicitors, despite being asked to furnish a copy under CPR31.14 have not supplied. Valid point

 

 

With reference to this thread : http://www.consumeractiongroup.co.uk/forum/showthread.php?309473-Advice-needed-on-court-summons/page2 - do I contact the solicitors again to request the NOA? under CPR31.14 No as I have said you have requested it once they have not responded they will have to prove it at some stage

 

Is there a method whereby I can force them to provide (or not) valid DN and Annual statements? In your Directions at AQ stage

 

Sorry for all he questions, but I need to get a bit of a wriggle on here as time is running out!

 

I may have already asked this but are there any unfair charges or PPI involved or harassment?

I would envisage that your main argument would centre on the NoA and DN but you can pack it with the above points you have raised.

Playing devils advocate if you had received a valid NoA and DN would you accept their claim and admit ?

Regards

Andy

 

 

 

[Ilike banks]

There are no unfair charges, certainly not of any significance, as far as I can see.

 

Would I admit? I'm so sure I have not received a NOA, so that question is a little hard to answer at the mo. And I'm sure we have not recieved any Annual Statements etc either. I guess, given a valid NOA etc., then it would depend on the perceived strength of the original agreement they have supplied.

[AndyOrch]

The fact that you (think) you have not received a NoA is not substantial enough to base ones defence on

and would probably (without the odd exception) be accepted by most DJs

 

Now the fact that you infer that the CCA is (in your opinion) deficient can be argued if you can cut the mustard.

 

The Fact that you have never received any ANs or Annual statement from the assignee has got merit.

 

 

CCA2006 amendments

 

 

11Failure to give notice of sums in arrears

 

“86DFailure to give notice of sums in arrears"

 

(1)This section applies where the creditor or owner under an agreement is under a duty to give the debtor or hirer notices under section 86B but fails to give him such a notice—

(a)within the period mentioned in subsection (2)(a) of that section; or

(b)within the period of six months beginning with the day after the day on which such a notice was last given to him.

(2)This section also applies where the creditor under an agreement is under a duty to give the debtor a notice under section 86C but fails to do so before the end of the period mentioned in subsection (2) of that section.

(3)The creditor or owner shall not be entitled to enforce the agreement during the period of non-compliance.

(4)The debtor or hirer shall have no liability to pay—

(a)any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; or

(b)any default sum which (apart from this paragraph)—

(i)would have become payable during the period of non-compliance; or

(ii)would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).

(5)In this section ‘the period of non-compliance’ means, in relation to a failure to give a notice under section 86B or 86C to the debtor or hirer, the period which—

(a)begins immediately after the end of the period mentioned in (as the case may be) subsection (1)(a) or (b) or (2); and

(b)ends at the end of the day mentioned in subsection (6).

(6)That day is—

(a)in the case of a failure to give a notice under section 86B as mentioned in subsection (1)(a) of this section, the day on which the notice is given to the debtor or hirer;

(b)in the case of a failure to give a notice under that section as mentioned in subsection (1)(b) of this section, the earlier of the following—

(i)the day on which the notice is given to the debtor or hirer;

(ii)the day on which the condition mentioned in subsection (4)(a) of that section is satisfied;

©in the case of a failure to give a notice under section 86C, the day on which the notice is given to the debtor.”

 

 

Now if these companies wish to purchase debts that the OC as wrote off not wished to litigate for what ever reason and also claimed tax relief on

then the responsibilities and clauses of taking over such a debt must be complied with as with any responsible lender.

 

So even if the CCA is or is not deficient makes no difference if you take the above into account.

 

Regards

 

Andy

[Ilike banks]

So, just to clarify the above view Andy, you believe that if they have failed to issue Arrears Notices or Annual Statements, they have lost the right to pursue me, making any agreement, compliant or not, irrelevant?

 

Whats to stop them 'reconstructing' them and producing them as evidence?

[AndyOrch]

(3)The creditor or owner shall not be entitled to enforce the agreement during the period of non-compliance.

 

 

Nothing to stop them but it would appear obvious that they are back tracking to correct their error and apart from that it would be Illegal.

Andy

[AndyOrch]

Hi ILB responding to your PM

 

What date was your agreement from, just to refresh me?

 

Andy

[Nomore Baloney]

2004 Andy