CCJ in force, CO just about to be applied.......HELP!!

[desparatedan]

CCJ was awarded to Carboot back in October and for various reasons, my DMP plan was not amended correctly to pay them, so interim CO applied for and granted, case due to be heard next week. I will request an adjournment on this as I have extenuating personal reasons to dealy and have not been in position to prepare defence, but it will have to be faced soon.

I have read with interest the Carey v HSBC case and had built an outline Set Aside defence for the original CCJ around this case. A request for my CCA agreement or true copy of it was requested back in March, and yes, you've guessed it, was greeted with the return of the £1 postal order, a polite letter stating they were not in possession of it, and were pursuing it with the original lender (Goldfish), if I would be so good as to hold tight they would send it on in due course. This letter alone proves they were not in possession of it when they issued a default notice.A follow up demand from me stating they were now in breach of their requirement to provide me with said agreement, was responded to (eventually) that their in-house solicitors had advised them that as the original debt was now the subject of a CCJ, they were under no obligation to provide me with it.Was still feeling pretty confident about my defence for Set Aside until I read about the Court Of Appeal rulings stating that the provision of an actual or true copy of the agreement was NOT what the original Carey v HSBC ruling was about, and could NOT therefore been used as a defence to excuse debtors from repaying their debts.Can someone on this forum give some guidance as to what implication the Court Of Appeal rulings have had on the provision/existence of the original agreement? Is this still a valid arguement?

[Conniff]

Looking around the various legal sites discussing the case, one of them says this:

 

"However consumers should remember that should a creditor issue court proceedings against them, without first locating a signed document, they would have a defence to that action. Without a signed document the creditor will have to convince the court that on balance a document signed by the consumer containing the prescribed terms would have been produced at the time of execution. The onus is on them to prove this. "

 

So what would happen if the debtor looked at this reconstituted agreement and denied they had ever signed to those terms or rates etc.

[desparatedan]

With respect to the at time of execution, is this the serving of the Default Notice? Its pretty clear from what Carboot are saying, that they have never been in possession of an agreement.

One other thing that annoyed me about Carboot, is that having sent me the documentation on a CD from a SAR request, you cannot print any of it as it is copy/print/email/etc protected. You can only read it on your PC. So if you want to present these documents as part of your evidence, you can't.

 

Thats annoying.

 

Reallly Annoying.

[desparatedan]

Have sent off SAR requests to Carboot and Goldfish, as I am trying to discover if any DN was servered by Goldfish. If DN WAS servered by Goldfish, does this mean that any subsequent DN notice by Carboot is null and void?Also, the DN received from Carboot was not accompanied with any T&Cs. Does this make it unenforceable?.

I need to put together a defence for Set Aside, as I believe the execution of the original DN was flawed.

It happened at a time I was suffering a particularly bad episode, diagnosis of a life threatening condition which led to subsequent serious surgery and further treatment. But during that time, a CCJ was imposed, Carboot indicated they would sort out my payments with DMP, but did nothing, hence fell foul of defaulting the CCJ. Now they are pursuing the CO.

Carboot have also been applying penalty payments for missed payments, during the time thay they were supposed to be sorting it out with my DMP.

Feeling more like a fight now, but only have until early Sept for the hearing, so would appreciate some guidance.

[42man]

What you will need to do is apply to set aside the original CCJ at the same time as going for the CO hearing.....(was the original CCJ undefended ?) I would send a CCA request directly to the original creditor (if you haven't already) was there any PPI on the credit card ? - http://www.dailymail.co.uk/news/article-1217173/Judge-quashes-womans-8-000-credit-card-debt-landmark-ruling-mis-selling-payment-protection-insurance.html

 

I think you should also look at Kotecha vs Phoenix too I think due to Brandon vs Amex (which is currently awaiting a High Court judgment) then right at this moment in time the DN aspect may be immaterial...

[desparatedan]

The CCJ was not defended and was one of the Northampton Bulk Centre specials. it went undefended as I was dealing with other issues at the time and the DMP policy of acquiesce and admit everything in the hope that they will go away happy. Works with less agressive Banks and DCA's but Carboot don't seem to play by the normal rules.They ignored numerous letters prior to the CCJ instructing them to contact the DMP people and arrange payments, hence they went for the CCJ.Read the Kotecha v Phoenix case and Carboot had been applying penalty payments to my account prior to the CCJ, but as they had not supplied any T&C's at any point, how can the Phoenix case be brought into play? Struggling with this one. Did a CCA after the CCJ was in force, but was eventually told as it was a judgement debt, they no longer had to comply to those requestsMy plan is to apply for a Set Aside of original CCJ at the next hearing, but am struggling to build case. But still feel that the full force of the law is being brought against me, whilst they are showing scant regard for following the finer points themselves.

[42man]

You should inform the court that you will be being treated in hospital at the time of the CO hearing....as for the agreement then you should IMO send a SAR to the original creditor, and apply to set aside the original CCJ if you didn't defend it.