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

[marcander]

Many thanks

M.

[ims21]

Thread moved to Legal Issues

 

ims

[AndyOrch]

Many thanks ims21.

 

Andy

[AndyOrch]

Hi Marc

 

Ok the problem we have is that you have maintained minimal payments to this debt and as so the question of whether it is a SB debt (you state they cant account for the payments) may be a gamble if they do come up with the relevant statements.( surely someone must keep a record of payments once it enters the the realms of the DCA?)

 

In light of the above are there any other factors which you could use as an alternative defence (apart from the obvious lack of CCA) PPI/Unfair charges/ have you ever received a DN or a NoA for this account?

 

I am aware that a defence must be submitted tomorrow at the latest come what may, if you could flesh the bones on the above points then we can see what can be done.

 

Regards

 

Andy

Edited March 15, 2012 by Andyorch

[marcander]

Hi Andy, I can only presume I had a default notice in 2001. I have no evidence of that. I know that the debt cannot be SB 'd because there has been communication between my self and Moorcrop for at least 9 years while paying each month up until just over a year ago. I thought that no CCA was an absolute defence, especially as this agreement relates to a period before 2007. Even the letter from Moorcrop informing me that Eggg could not "currently" supply me with a CCA gows on to say that just because a debt is "unenforcable" doesn't mean it's not due etc.

 

Sorry if i can't give any more helpful info.

 

Thanks again

M.

[AndyOrch]

No CCA is a defence (not sure its absolute these days) but as yours is pre 2007 then no reconstituted can be used for enforcement.I would simply base the defence on that then and the lack of DN.

 

Regards

 

Andy

[marcander]

Thanks Andy, I do dispute the debt and it is a genuine dispute as having had no statements of account from either Moorcrop or eegg since default in 2001 I am entitled to dispute it. Also the amount claimed by eegg then moorcrop then barclays then arroow and bryan cartr his increased. decreased then increased again.

 

I shall file my defence tomorrow and keep the forum updated as it may help others, whatever happens.

 

I was hoping that the docs/evidence bryn cartr are sending me would have arrived before the time out for my defence but I am still interested in seeing what they have.

 

One quick question, if we go to court or chambers should i prepare evidence on previous cases etc or do I point people in the direction of previous cases etc or will the court etc know all about the current legal position on no CCA no contract etc?

I have amassed quite a bit of info on "No CCA" debt situations and there are a number of problems along the way with Arrow/cartr now having the debt, such as a debt cannot be assigned while in dispute. Never has a notice of assignment from EGGG or Moorcrrop. Interestingly, my CCA request resulted in a "cannot at this time supply a CCA" from Eggg via Moorcrop and not a "We don't have one" response. I suppose then I could also maintain that I am still waiting for my CCA request to be complied with or not. Neither as happened really.

 

Anyways we will see what we will see.

 

Many thanks again,

 

M.

[AndyOrch]

Thanks Andy, I do dispute the debt and it is a genuine dispute as having had no statements of account from either Moorcrop or eegg since default in 2001 I am entitled to dispute it. Also the amount claimed by eegg then moorcrop then barclays then arroow and bryan cartr his increased. decreased then increased again.

 

I shall file my defence tomorrow and keep the forum updated as it may help others, whatever happens.If you would like to post up first for the site to vet

 

I was hoping that the docs/evidence bryn cartr are sending me would have arrived before the time out for my defence but I am still interested in seeing what they have. Very little or nothing

 

One quick question, if we go to court or chambers should i prepare evidence on previous cases etc or do I point people in the direction of previous cases etc or will the court etc know all about the current legal position on no CCA no contract etc? Prepare WS and Skeleton Argument to supplement your defence (don't quote case law acts within your defence)

I have amassed quite a bit of info on "No CCA" debt situations and there are a number of problems along the way with Arrow/cartr now having the debt, such as a debt cannot be assigned while in dispute. Shouldn't but are invariably Never has a notice of assignment from EGGG or Moorcrrop.Thats a plus Interestingly, my CCA request resulted in a "cannot at this time supply a CCA" from Eggg via Moorcrop and not a "We don't have one" response. I suppose then I could also maintain that I am still waiting for my CCA request to be complied with or not. Neither as happened really.Then they remain in default until they do but then again this Muppet wont know that

 

Anyways we will see what we will see.He will discontinue as soon as a defence is submitted doesn't like hard work BC

 

Many thanks again,

 

M.

 

Regards

 

Andy

Edited March 15, 2012 by Andyorch

[marcander]

I know I'm a bit thick here but what is "WS"?

 

Thanks again,

 

M.

[AndyOrch]

Witness Statement

[dx100uk]

your Credit file should show all payments made against the default debt, they have a duty as data controllers to report any repayments against the debt.

 

you've been cash cowed me thinks

 

dx

[marcander]

I started checking my credit files in 2008 and there was no reference to this debt at that time nor since, and I have been making payments for 9 years. However all references to a defaulted debt should be removed from credit files after 6 years from the default date. This is according to the ICO. The reason being that someone like me who pays something every month for years should not be at a disadvantage to someone who pays nothing. So, I have no way of finding out if the earlier monthly (informal arrangement) payments (from default date in 2001 to 2007) were reported to the credit agencies. I don't know if its possible to see how my credit files were pre 2008. But I do agree with you DX it would be interesting to find out.

 

Thanks again

M.

 

P.s. Just been checking for activity on the MCOL site and it's down.

Edited March 15, 2012 by marcander
addition

[marcander]

My defence as I see it is going to be

1= I requested a copy of CCA as per CCA 1974 and none was forthcoming, not complied with so account is in dispute. Stated "could not currently comply" suggesting that they may be able to in the future.

2= The failure to produce a CCA original copy means unenforceable.

3= Failure of the creditor (whosoever that was at any particular time) to supply a statement of account this is now a statutory requirement.

4= Failure to supply a statement of account when requested by me to do so.

5= Failure to halt collection activity while account in dispute. ( i.e. 173 phone calls received from 5 different Debt collection agencies in 5 month period. A number of demands and threats of court action when they should have known that Non compliance with CCA request means judgement could not be obtained without a copy of the original CCA.

6= My request to have all communication by letter only was ignored and I was still receiving phone calls up until a week ago, even though I explained that I am a carer for my disabled wife and I am still being treated for cancer myself after a 12 hour operation and that these phone calls were causing us both considerable distress, especially as the account is in dispute.

7= Have not received notice of assignment from Eggg to Moorcrop or from Moorcrop to Barclays.

8= Debts that are in dispute should not be assigned

9= Debts should not be pursued by more than one dca at one time.

10= Anything anyone else can suggest.

 

Thanks again all

 

M.

Edited March 15, 2012 by marcander
addition

[marcander]

Just having a look at the OFT "consequences of Non compliance" on the enforceability of the agreement s77/78 /79/ (2010) " If a creditor has commenced legal proceedings while non-compliant under section 77/78/79 of the ACT it is appropriate for the debtor to apply to the court to obtain a stay of proceedings pending compliance under sections 77/78/79

M.

Edited March 15, 2012 by marcander
correction

[AndyOrch]

Hi Marc you now need to draft it out into defence form.

 

Andy

[dbabylon]

Apologies for chipping in, but no-one has mentioned the Notice of Sums in Arrears, Notice of Default Sums (if any have been charged)etc. Have these ever been received? If not then I would refer you to section 86D Consumer Credit Act 1974;

 

86DFailure to give notice of sums in arrearsE+W+S+N.I.

(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.

 

Be careful as I have only cut and pasted the important part, you should read the rest of the section.

[AndyOrch]

Apologies for chipping in, but no-one has mentioned the Notice of Sums in Arrears, Notice of Default Sums (if any have been charged)etc. Have these ever been received? If not then I would refer you to section 86D Consumer Credit Act 1974;

 

86DFailure to give notice of sums in arrearsE+W+S+N.I.

(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.

 

Be careful as I have only cut and pasted the important part, you should read the rest of the section.

 

Pre 2007 dbabylon so not retrospective.Thanks for chipping in though.

 

Regards

 

Andy

[marcander]

Thanks Andy,

 

Does that mean just as I have listed it above or is their a particular layout I need to follow? I have just started looking at the online defence page and it seems that I have to give details of my defence in a box in not more than 122 lines. Do I have to use a particular language? Sorry to be a pain but I need to get cracking on my defence now.

 

Thanks again

 

M.

[AndyOrch]

Defences are drafted to refute the Claimants P.O.C nothing more nothing less, simply to refute and halt/question their claim. I will try to illustrate by advising what I write when drafting defences. First, I always write (or words to the effect of),

"The Defendant denies that he is liable as alleged in the particulars of claim, or at all." Once you have made that statement, of course you are saying no monies are owed. Beyond that, when you raise issues in respect of charges or anything else, phrases that are used include, "If that which is denied," or "In respect of the alleged agreement, to which penalty charges have been levied." You get the picture! There are many ways of raising points without admitting a damn thing! It's quite amusing the way things are worded when you think about it, you can accuse the creditor of all sorts without admitting liability! That's the funny quirk that law has! Incorporating your previous claim within the defence can only add merit rather than a simple holding denial.Its just down to the way you draft it.

 

I will try to sort an example shortly

 

Andy

[AndyOrch]

The limit is 8050 characters online MCOL so more than ample to deal with their vague P.o.C

 

Example Defence

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, or at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

Accordingly, the inclusion of penalty charges in the purported Notice of Assignment, renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate. Consequently, the alleged assignment remains equitable and therefore conferred no legal right upon Claimants, to issue a Court claim in respect of monies allegedly owed.

 

It is therefore averred that the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970.

 

Regarding that which is denied, on the XX XXXX XXXX, a request was made under section 78, running account credit, of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by recorded delivery to the Claimant, with the statutory £1.00 fee enclosed. It was received on the XX XXX XXXX. The Claimant had twelve working days from receipt of the request, in which to furnish a credit agreement, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.

 

In response to the request, a letter dated the xx xxxx xxxx, with an accompanying document was received from the Claimants. It is denied that the document furnished is a copy of a credit agreement as averred by the Claimant. The Claimant has provided an application form which is not a credit agreement within the meaning of sections 60 and 61 of the Consumer Credit Act 1974. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, the Claimants are in default of said request under section 78(6)(a) of the Consumer Credit Act 1974.

 

The Defendant further avers in respect of that which is denied, that the document furnished is a breach of section 59(1) of the Consumer Credit Act 1974.

 

The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produced a copy of a credit agreement in the requisite timescale or at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

The Claimant, possessing no legal right claim monies allegedly owed, have acted unlawfully in issuing a Default Notice and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Furthermore, the Defendant avers, that the Default Notice is wholly unenforceable, given that the amount claimed regarding that which is denied, contains penalty charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons.

[AndyOrch]

Marc

 

Don't forget to print off your receipt of submission once transmitted.Oh and don't forget to include the 147 phone calls:wink:

 

Andy

[marcander]

great, Thanks

 

M.

[marcander]

Thanks again guys for your help. Have filed my defence as

 

"Defence

The defendant denies that he is liable to the claimant as alleged

in the Particulars of Claim, or at all for the following reasons

 

1 The defendant requested a copy of the consumer credit agreement

as per s77.78. of the Consumer Credit Act 1974 and none was

forthcoming, The claimant stated that they could not currently

comply. This put the account in to Dispute where it now remains,

until the claimant does comply.

 

2 The failure to produce a copy of the original CCA with the

prescribed terms, or indeed anything at all means the account also

became unenforceable, as advised to the defendant by the claimant

when returning the £1.00 fee with his reply.

 

3 Failure of the creditor (whosoever that was at any particular

time) to supply a any statement of account at all within the last

11 years.

 

4 Failure to supply a statement of account when requested by the

Defendant to do so.

 

5 Failure to halt collection activity while the account is in

dispute. i.e. 173 phone calls received from 5 different debt

collection agencies in one month alone and that has prevailed for

the last 2 years. A number of demands and threats of court

action when the Claimant should have known that Non compliance

with my CCA request means judgement could not be obtained without

a copy of the original Consumer Credit Agreement.

 

6 The defendants request to have all communication by letter only

was ignored

and the defendant was still receiving phone calls up until a week

ago, even though I explained that I am a carer for my disabled

wife and I am still being treated for Squamous Cell

Carcinoma (mouth cancer) myself after a 12 hour operation and that

these phone calls were causing us both considerable distress,

especially as the account is in dispute.

 

7 The Defendant has not received a notice of assignment from Egg

to Moorcroft or from Moorcroft to Barclays.

 

8 Debts in dispute should not be assigned.

 

9 Debts should not be pursued by more than one dca at one time.

 

10 The treatment of the defendant by the claimant has been unfair

and unlawful.

 

OFT Guidance on sections 77,78,79 of the consumer credit act 1974

The duty to give the information to debtors and the consequences

of non-compliance on the enforceability of the agreement

 

states If a creditor has commenced legal proceedings while

non-compliant under sections 77,78 or 79 it is appropriate for the

debtor to apply to the court for a stay of the proceedings pending

compliance under sections 77,78 79 of the Act.

 

The claimant has not established any legal right to issue a claim

or proven that any debt exists. It is the defendants position

that the claimants claim is entirely spurious and without merit

and should be struck out for the aforementioned reasons."

 

Thanks again all, we shall see what we shall see.

 

Will keep updating in case its helpful to anyone going through similar.

M.

[marcander]

Received a letter from the court saying they had served my defence to the claimant/solicitors. Having received a reply to my cpr request saying that they will request and revert back to me the evidence they are relying on I have not as yet (31st March) received copies of the documents they will be relying on.

 

M.

[BRIGADIER2JCS]

There will be some delay such things are not instant.