Egg/Moorcroft/Bryancarter No CCA *** Claim Discontinued***

[marcander]

You are seeing something that isn't there. It's part of my first and second names. so, yes it's almost for real.........lol

 

M.

[DonkeyB]

Close but no cigar...

[marcander]

Right so here we go again..... I have received another allocation questionnaire from my local court. Not quite sure why I would have to complete a second Alloc Quest. Anyways will complete and take to my local court and see what happens.

X

[citizenB]

Very odd ?

[marcander]

This second Alloc Quest is also N149 same as first. I can only state the same reasons really.

 

Defaulted by egg 2001

been paying informal monthly payment arrangement continually from 2001 to 2011 starting at £2 and paying £35 p month around 2009 2010.

Never had a statemt of account from Moorcrap between 2001 and now.

Had one formal reply saying cannot at this time provide CCA in compliance with a number of my requests.

 

In reply to court order Arrow have provided "unsigned" internet application form as their sole and total evidence.

No statements of account, no record of my 10 years payments since 2001 and no CCA signed or unsigned.

 

I will ring my local court and ask why have I received another identical Alloc Quest.

 

Will update.

 

P.s. I only stopped paying in 2011 because moorcrap suddenly insisted I pay of the balance immediately,

just before barclays took over the egg accounts and " i think" sacked moorcrap.

 

regards

M.

X

[marcander]

Also in my defence on 1st alloc quest I have never actually said that I have been paying each month since 2001 as I was basing my defence on the absence of proof/evidence i.e. no statements of account/records of payments no CC agreement. My understanding is that the claimant must first provide evidence of a claim and only then do I have to provide evidence of my defence.

 

Arroowws unsigned internet application form shows that I applied for a card, that's all.

 

Anyways thanks again all

M.

X

[DonkeyB]

Call the court and ask what happened to your earlier AQ, and why another has been issued.

[marcander]

Have done just that. They said it was because the claimant had changed their claim. I may therefore want to add or change part of my defence. so, the judge has ordered that another Alloc Quest be sent out. In between the 1st alloc quest and this one the judge ordered that we both file full partics of their claim and my defence. the other side served and filed a copy of the internet application form and their Statement of truth. nothing else. I filed and served my defence based on no CCA. No statement of account ever, since default 11 years ago and requested stay of proceedings until they supplied me and the court with CCA and statement of account.

 

My reply now within the alloc quest will be the same as the last one. The court said today that because claimant had changed something in claim everything had been put back a step.

 

So, we shall see what we shall see,

 

thanks again all.

 

Quite interesting isn't it?

 

M.

X

[marcander]

I have now received my court date for November. The case has been allocated 2 hours. Apparently the claimant has to pay a fee of £325 by 12th October for the case to go ahead. There is a clause on the court notes that says I can apply for a stay of proceedings for a fee so that I think, is what I will do.

 

I intend to apply for a stay of proceedings until the claimant provides me with a copy of my CCA and a statement of account so I can see the case I have to answer. All I have had as yet is a copy of an internet application form unsigned and a statement of truth.

 

I do not deny I had an eegg credit card but I do deny that I still owe a debt after making monthly payments continously on an informal payment arrangement for 10 years.

 

Any comments / suggestions welcome.

 

Many thanks

 

M.

[dx100uk]

did you ever get that sar done?

 

dx

[AndyOrch]

I personally would not advocate making application to stay on the basis of disclosure mercander.Holding a trial in this way would appear as stalling for time, have you got to N170 stage yet?

 

Regards

 

Andy

[marcander]

No I havn't done a SAR as it was difficult to decide who to SAR to. Original creditor was of course EEGG then Moorcrop "handled" on their behalf and took my 10 years post-default payments then Barclaycard took over and sold to Arroow and that's where I am today.

 

Andy I havn't had an N170 yet.

 

I will revise my position on the stay. Thinking again I will know by 12th October if they have paid their fee or not and that should give me an idea of how serious they are as to whether they think they can win.

 

But getting back to basics, there are restrictions on what a creditor can do without a CCA and a set of statements. All of the advice I have seen on here and on other debt advice forums and also on OFT and ICO sites are adamant that the original CCA or a copy with prescribed terms and statements of account are essential requirements for successful court action. All of my formal CCA requests to Moorcrop and Arrow and requests for evidential docs by the court have produced only an unsigned internet application form. Where is their proof? Where is their evidence of that amount? Surely I can only be expected to defend a properly executed and evidenced claim, and only after the claim is proven. They started the claim so the legal onus is on them to offer a viable case before I have to file any defence to it?

 

I am fairly confident of my legal rights it's just laying them out in the correct sequence and hoping that the court upholds my rights under the CCA 1974. As this account is pre 2007 and 2004 then I understand that it falls under the CCA 1974 directly.

 

M.

[dx100uk]

SAR the OC always

 

shame that might f helped you.

 

dx

[marcander]

SAR the OC always

 

shame that might f helped you.

 

dx

 

I have been reading a guide on the forum written by surfaceagent and it appears that it might be to my advantage to CPR the claimant again asking for the CCA and statements of account to compel them to disclose documents. If these docs are not forthcoming then I may ask for a strike out or set aside. That the case may be unwinnable from the claimants point of view.

 

M.

[citizenB]

You can only send CPR31.14 for those items mentioned in the Particulars of Claim. For all other information you need to use CPR part 18.

 

Have you posted up the Particulars of claim in your thread ?

[citizenB]

It appears you have already sent a CPR31.14 letter - post#18 refers and you received a typical BC response.. !

[marcander]

I was thinking of sending a SAR to aarrroww to see what docs they actually have. However I understand that because they have produced only an unsigned application form and a statement of truth, no CCA no statements to back up any calculation, then that is all they can offer as evidence in court. So, if a SAR produced documents then the court may not accept them as our courts do not allow suprise witnesses and documents suddenly produced. So, there seems little point in that.

 

Judge Waksman said that the CCA does not have to be the original but in the absence of even a correctly reconstituted CCA then court action is not possible to enforce the debt.

 

"Judge Waksman decided that these other sources could include other data held by the bank about their customers, and it could be recreated by drawing on the standard terms and conditions that the bank applied at the time.

 

He added, therefore, that if the creditor does not have the original executed agreement, this is not itself a "bar to compliance" with the Consumer Credit Act, because of the other sources that can be used to provide a reconstituted version.

 

But he also stated that if a creditor could not supply a copy of the loan agreement at all, then this automatically prevents them from using the courts to chase a debt until they provide one. A copy also must contain the name and address of the borrower as it was at the time it was signed."

 

I also understand that because my original CCA was from 1999 then it is subject to rules and guidelines from that time.

 

What about me complaining to the OFT? Any thoughts on that and maybe a complaint to FSA. My understanding is that a creditor should not threaten court action if he knows that a court cannot make a judgement in that particular case thus he is threatening action which he "knows" cannot be taken.

 

Also is it worth me sending yet another CCA request to Arrooww?

 

If Arrooww pay the £325 fee by 12th October then the hearing will go ahead and I am happy to attend. However, reading Surfaceagents PT2537 What to do if you are being sued and there are references to the judge saying to a defendant "why did you let it get this far when there is no case"? so I don't want to miss anything that I should be doing now.

 

Any comments appreciated,

 

Kindest regards to all

 

M.

[BRIGADIER2JCS]

Arrow will have very little data since debt is sold with minimal information.

[marcander]

There seems to be a fine line between "bringing an action" and "going through with it".

Quote from "OFT"

 

5 SANCTIONS FOR NON-COMPLIANCE23

 

5.4 While Flaux J agreed with the decision of HHJ Simon Brown QC (sitting as a Deputy High Court Judge) in Tesco Personal Finance v Rankine 27

that commencing proceedings was not enforcement, but a step taken with a view to enforcement, both he and HHJ Simon Brown appear to

have been drawing a distinction between commencing proceedings and entering judgment in those proceedings.28 29

 

5.5 Importantly and further to the specific interpretation of the statute, the OFT considers that in taking any such steps, a creditor should in no way,

either by act or omission, mislead a debtor as to the enforceability of the agreement. To do so would be an unfair or improper business practice

and would be highly relevant to a creditor's or owner's fitness to hold a licence under the Act. It may also be an unfair commercial practice under

the Consumer Protection from Unfair Trading Regulations 2008 and 26 Paragraphs 74 and 75 of the judgment.

27 [2009] C.C.L.R. 3.

 

28 Flaux J considered that 'unenforceability' under the Act was a barring of the remedy, not an extinction of the right. HHJ Simon Brown QC considered that the appropriate response to a

failure to provide information under section 78 during the course of proceedings was to "apply to stay the proceedings".

 

29 Note: This section of the Guidance describes the analysis in relation to unenforceability outlined in recent High Court judgments. The OFT will review this section should there be any

further clarification of the consequences of an agreement being unenforceable that may result from future cases.

OFT1272 | 23

attract enforcement proceedings under the Enterprise Act 2002. An obvious example of this would be threatening court proceedings when aware that a judgment could not be obtained because sections 77, 78 or

79 cannot be complied with, without also making that clear to the debtor/hirer.

 

5.6 It should also be noted that the court in McGuffick was dealing with the issue of enforceability under section 77. The court expressly

distinguished the situation where the agreement was improperly executed at the outset, and accordingly the creditor's rights were always

restricted.30

 

5.7 The principles of enforcement action in this area are judged by the OFT to be similar to those applying to statute barred debt. If sections 77, 78

or 79 cannot be complied with so the debt cannot be enforced in the courts, this does not mean that the debt disappears, and it is perfectly

acceptable for a creditor to seek to pursue the debt. It is also acceptable, in this context, to register accurately any arrears or default

with a credit reference agency.

 

"However, if they were to threaten court action, knowing that judgment will not be possible and that therefore court action will not actually be taken, this would be judged by the OFT

to be misleading and oppressive."

5.8 In particular, where an agreement is unenforceable because of noncompliance with an information request under sections 77, 78 or 79, the OFT's guidance to creditors or owners on this issue is as follows:

• The OFT would firstly expect the creditor or owner to take steps to check that there was in fact an agreement with the debtor or hirer,

and in particular whether there are in fact monies outstanding under it, and if so for how much. This should be capable of being

demonstrated to the debtor or hirer.

 

30 Paragraph 70

OFT1272 | 24

 

• Secondly, no communications or requests for payment should in any way threaten court action or other enforcement of the debt where

the creditor or owner is aware that it will not be entitled so to enforce the agreement.

 

• Thirdly, the creditor or owner should make it clear when communicating to the debtor about the debt that the debt is in fact unenforceable. Failure to do so, where the creditor or owner is aware

of unenforceability, would in our view unfairly mislead the debtor by omission.

 

31 • Any communication that implies expressly or otherwise that the debt is enforceable when it is known that it is not would be misleading.

One way to avoid this would be for the creditor to explain the full meaning of 'unenforceable'.

 

"So," he said, sarcastically "they can take me to court but they cannot win?"

 

I have copies of my written recorded delivery requests under CCA 1974 to Moorcropp (the then DCA) from 18 months ago and they quote a case that refers "although this account is deemed unenforceable".

 

I was starting to lose a bit of confidence in this but even now I could complain to the OFT as their actions could amount to limiting their ability to hold their licence.

 

Comments again appreciated

 

M.

[dpick]

Hi all I could be totally wrong here but after reading this thread and going to make a cupper something just kept going round in my head. Was it not the case that before 2004 when you did an on-line agreement they had to then get a properly signed agreement from you. I know that for a loan I got from someone in 2002 they sent someone with the cheque and an agreement for me to sign I believe that this was intelligent finance (Haliprats by any other name) So could this be the case that they do need a signed agreement.

 

dpick

[marcander]

This makes things a little clearer...........

 

Landmark ruling on consumer claims

A High Court judge has ruled that creditors need only to provide a reconstituted copy of original credit agreements, when they face consumer claims against debts.

In a landmark claims management case at the High Court, Judge David Waksman clarified a number of points over the enforceability of consumer credit agreements.

He upheld that banks can enforce debts even if the original agreement of the loan or credit card has been destroyed and that a creditor can fulfil its duty, by providing a "reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself."

 

Judge Waksman decided that these other sources could include other data held by the bank about their customers, and it could be recreated by drawing on the standard terms and conditions that the bank applied at the time.

He added, therefore, that if the creditor does not have the original executed agreement, this is not itself a "bar to compliance" with the Consumer Credit Act, because of the other sources that can be used to provide a reconstituted version.

 

But he also stated that if a creditor could not supply a copy of the loan agreement at all, then this automatically prevents them from using the courts to chase a debt until they provide one. A copy also must contain the name and address of the borrower as it was at the time it was signed.

 

The case in front of Judge Waksman was one of six test cases from which it is hoped that clarity would be provided on how creditors can ensure they are compliant with the CCA, when they face claims from consumers that their debts are unenforceable.

 

Under section 77 to 79 of the Act, lenders must supply a copy of the credit card or loan agreement to the borrower when one is requested, but there were ambiguities over what constituted a true copy of the agreement and in what form it should be provided.

 

Some claims management companies had argued in the courts that debts were not legally enforceable if an acceptable copy was not provided, because failure to provide one did not comply with the Act.

 

But Judge Waksman upheld that the purpose of obliging lenders to provide a copy of the agreement as not to prove that the agreement was fully compliant in the first place, moreover that it should provide the consumer with information about the state of the account.

 

But he also said that creditors could not invent the loan agreement retrospectively to comply with the Act.

 

He added that the copy of an agreement must be honest and accurate and must be based upon records held on the debtor and the agreement originally struck with the debtor.

 

Source: Credit today

 

M.

[marcander]

A couple of weeks ago I agreed to telephone mediation provided by the courts.

 

A mediator talks to me (defendant) and the claimant one after another.

Neither of us can hear the other but the mediator relays each party's verbal evidence and points.

 

When my reference to me paying Moorcrop every month for ten years from default

and my ceasing to pay after non-compliance by moorcrop with my CCA request in 2011 was relayed to arrow,

they said they were totally unaware that Moorcrop were involved in this anywhere along the line.

 

Also they were unaware that I had been paying for 10 years to moorcrop "Egg".

 

The only dca they knew about was Fredericksoons.

 

They became involved after Egg refused to comply with my request and after many phone calls from freds

and 15 letters they too disappeared after I had their unqualified "search by debt collection agency" removed from my credit file.

 

thru the mediator arroow asked me to provide bank statements to prove payments.

I refused stating that this was asking me to do their work for them.

 

I was reminded many times in the conversation that Arrow were willing to negotiate a final settlement discount

and payment arrangements even up to the date before the hearing/trial.

 

I refused this kind offer and stated that in order to know my position and the case, if any,

I have to answer I need to have (as per CC act 1972) the details etc and a statement of account to see how arrived at.

 

I have made a number of requests from Moorcropp for CCA and received only one answer,

" could not supply CCA at this time and no reference to statements requests, having never had one.

 

Arrow had to pay £325 to court to proceed with trial and this they did on 12th October.

 

They were so in the dark about moorcropp and my payments to them that they suggested to the mediator that it was a different account.

 

We did however confirm the same account.

 

Today I have received a GENERAL FORM OF JUDGEMENT OR ORDER

saying that the claimant should by 4pm on 29th october serve on the defd and the court all documents they will be using

or confirm to the defn and the court that there are no such documents or it will be struck out.

 

Also that I am to do the same or my defence will be struck out.

 

My evidence is my 5 requests to moorcropp for CCA and statements and their single reply to my last request saying their client eeeggg

could not at this time comply but they stated that unenforceable could still be chased.

Thereby admitting that unenforceable thru the courts.

 

Oft states that threatening county court judgement knowing it cannot succeed is unfair.

Thus could lead to licence eligibility problems.

Also as above that no CCA means court action can be taken but cannot succeed.

And as judge waxman ( I think) said " So they can take you to court, but they cannot win."

 

I am in court on 7th November and I shall report back then.

 

I will be interested in the meantime to see if any more documents arrive from Arrow.

(Up to now I have had statement of truth and unsigned internet application form.)

 

I will be sending my docs tomorrow.

 

Comments as ever, appreciated.

 

Many thanks

 

M.

[dx100uk]

it absolutetly amazed me everytime this comes up

 

one DCa spoofs a punter into paying a debt

the payments all but vanish

 

then along comes another demanding money

 

its really about time this whole 'industry' was closed down.

 

it really would be nice, if the payments have not officially come off the debt

but gone to moorcraps 'profit pot'

that its now SB'd and it blows arrow out the water!!

 

dx

[marcander]

It never really occurred to me, but yes, if Moorcropp have been taking my payments and keeping them then EEgg have had no communication for 10 years and so it would have been SB'd. There's no reference to the original default etc or payment arrangement on my credit files as were are over 6 years from default.

 

Anyways, we shall see what we shall see.

 

M.

[marcander]

Today I received a letter from Arrooww.

 

Attached is a court form filled by Arroow informing me that they have filed a discontinuance.

 

I haved checked with the court and sure enough the court has received the notice of discontinuance and the court is refunding their £325 court fee.

 

The claim is stopped and the hearing will not now take place.

 

I think the only time I had doubt was when aroow paid the £325 for the hearing to proceed.

 

I thought that they must be confident, and have I missed something.

 

Knowing now that their fee is refundable if they do not proceed then obviously they will always pay it and take it to the wire, so to speak.

 

The letter from Arroow still refers to the "debt" so they are accepting "unenforceability" but obviously still probably going to try and pursue what they believe is owed.

 

Anyways,

 

Thanks again to all.

Appreciate all of the comments and advice.

 

M.