could I defend in court

[park1]

I have a credit card debt and on the advice of this site I am paying £1 a month because I am on benefits, if they ever take me to court could I still defend the case because they have no cca or would I be in a bad position because I have been paying £1 a month.

I am not trying to get out of paying the debt but at the moment I have no job and thats all I can afford but I would like to be able to defend if they go for a charging order if they have no cca, I just dont want them saying if you thought there was no cca why did you pay £1 a month and they get a charging order without a fight.

cheers in advance for any advice.

[victoria_siempre]

Hi park1

 

I like you make affordable token payments where I have had benefit of an account notwithstanding that I would contest any CCJ as a precursor to a CO on any legal grounds. Conversely, since absence of a CCA can be countered by them fabricating a reconstituted one, I should not wish my sole defence to be the absence of paperwork.

 

I can’t see how denying affordable payments would help any defence against a CCJ or CO in the current climate; but this is a personal and pragmatic view.

 

x

 

v

[postggj]

in absence of a CCA can be countered by them fabricating a reconstituted one,

 

that is true

 

to comply with the cca request, a creditor can send a reconstructed copy, CAREY V HSBC but to start enforcement / court action

 

A TRUE CERTIFIED COPY OF THE ORIGINAL WILL BE NEEDED

 

NOT A RECONSTRUCTED ONE

[victoria_siempre]

Hi postggj

 

I totally agree that your's is an argument to defend against a CCJ in court; but even in the Keith Harrison case the Judge criticised the denial of any payment. As I said, just my view and folk are free to play s**t or bust.

 

x

 

v

[Ford]

they can start collection activities/court action without a copy of the original. if they do start a court claim, the q then in court would be have they satisfied the cca request, and/or do they have a copy executed agreement that satisfies the consumer credit act as applicable.

a charging order is usually an enforcement option following a county court judgment against.

token payments shouldn't affect the legality of an agreement in court.

note also that according to the Lending Code, once they have been notified of financial difficulties then the debt should not increase through interest or charges.

imo

[victoria_siempre]

Hi Ford

 

Were the DJ to ask, ‘Did you have benefit of the account?’ then I should prefer not to rely solely on technicalities. I should prefer to demonstrate good faith and use all legal arguments prior to court; I believe that there is evidence of DJs ignoring CCA legalities and ‘codes’. As I say, s**t or bust is an option but one I prefer to avoid.

 

x

 

v

[Ford]

hi vic

yes, avoid court if poss. hence why i mentioned the lending code. at least the debt shouldn't increase once the cred is notified/aware of financial difficulties. and negotiation could be entered into. stopping payments could even be seen as repudiation depending on the circumstances.

what i was saying is that they can start litigation pretty much regardless. but, once litigation they will (should) have to satisfy the relevant law in order to gain judgment. if they do start litigation, then park will have to decide whether to defend. and the legal issues i mentioned would be relevant.

codes are relevant re reasonableness/conduct. and, a 'technicality' may make or break a case if it goes that far!

also, that a charging order that the OP was concerned about is an enforcement option post judgment.

imo

Edited September 16, 2011 by Ford
typo

[brokebutnotbeatn]

Park1. Youa re paying £1/month which shows willing. Why do you think they will ever bother tkaing this to court???

[Sand-Dancer0191]

The more common option here is that they may exercise their right to a payment review each year...As post 8 says...WHY would they bother especially if they know they have no cca !!

[park1]

Park1. Youa re paying £1/month which shows willing. Why do you think they will ever bother tkaing this to court???

 

because it will take so long to pay the debt of £6000 off at £1 a month, I don't want to go to court and get a charging order on my house but I would like to be able to say to the court, they have no cca I will pay back what I can afford but leave my home alone.

[brokebutnotbeatn]

But the Charging Order would only come into effect if you sell the house? However, I think you are dealing with an unknown. If you are on benefits and you are showing willing by paying £1/month and they don't have a CCA then it simply isn't worth the hassle/cost. If you are paying all you can afford then there is no point in trying to get you to pay more. You can only offer a defence based on the facts at the time you need to offer one and as you don't then I wouldn't put myself through the stress of worrying about it. Worrying about it won't change anything really?

[Ford]

because it will take so long to pay the debt of £6000 off at £1 a month, I don't want to go to court and get a charging order on my house but I would like to be able to say to the court, they have no cca I will pay back what I can afford but leave my home alone.

 

park

as stated, a co is an option for the creditor once there is a judgment against. technically, once judgment and the court orders an instalment order and the instalments are kept up to date without default then a co should not be granted (but, there seems to be some cases to the contrary).

if they do start litigation, then you would need to decide whether to defend or not. if you do defend, then the legal issues i mentioned would be relevant if applicable. eg s78, no executed agreement, s127 cca. cpr 31.14/18 request would be appropriate.

whether they start litigation or not seeing as you are paying a token amount is difficult to say for definite, but unlikely. in some cases on cag they have done so regardless. but, they should make all reasonable attempts to resolve before doing so.

you say that there is no cca? have you done a cca request and/or a sar? or are you saying that there was absolutely never a signed agreement in the first place?

imo

Edited September 20, 2011 by Ford
typo

[park1]

park

as stated, a co is an option for the creditor once there is a judgment against. technically, once judgment and the court orders an instalment order and the instalments are kept up to date without default then a co should not be granted (but, there seems to be some cases to the contrary).

if it does go to court, then you would need to decide whether to defend or not. if you do defend, then the legal issues i mentioned would be relevant if applicable.

whether they would go to court or not seeing as you are paying a token amount is difficult to call, but unlikely. in some cases on cag they have done so regardless. but, they should make all reasonable attempts to resolve before doing so.

you say that there is no cca? have you done a cca request and/or a sar? or are you saying that there was never a signed agreement in the first place?

 

I sent a sar request off for all my statements and they said they can not find a cca , so I am now going to claim my ppi back and see if that can help with the balance or would I be better to wait and see if they take me to court before i claim my ppi back.

[brokebutnotbeatn]

it is so very very unlikely they will ever go near a court with this. get claiming the ppi.

[park1]

it is so very very unlikely they will ever go near a court with this. get claiming the ppi.

 

cheers I will thanks for all your help.

[Ford]

...I sent a sar request off for all my statements and they said they can not find a cca , so I am now going to claim my ppi back and see if that can help with the balance or would I be better to wait and see if they take me to court before i claim my ppi back.

 

 

yes, claim back any missold ppi now. (keep in mind that they may try and knock off any refund from the alleged outstanding balance)

also, could consider doing a cca request as well.

imo