DCA with default CCJ

[lookinforinfo]

To err is human and anyone can make a mistake as the Dalek said climbing off the dustbin.

[Learnerlitigator]

Welsh Dalek climbed off the dustbin Caer-philly, but I digress. Should SAR and CCA request be sent seperately or is it okay to send both in one envelope?

[lookinforinfo]

Normally, you would cca the DCA and sar the original creditor. However in your case that might be more difficult if the debts are from two different companies and you may not

have enough details on one of them to get what you want.

 

If you sar the DCA you won't get much in the way of info on either debt as they will not have been given much from the OC even if they have bought the debt . I think you would need to pay for two CCAs

but just the one sar from the DCA. The DCA does run the risk of breaching the Data Protection Act if one of the accounts is not yours.

[Learnerlitigator]

Kind of hoping the DCA does not have sufficient material on either issue to have concluded that they have traced the debtor and not simply traced a similar name in the right geographical area.

[lookinforinfo]

If you have received their letters via a different address, could you not use that one for the CCA requests?

[Learnerlitigator]

Not really as I have not lived at the CCJ'd address for more than 4 years. Even given that I know I had no CCA accounts other than those I have now.

[Learnerlitigator]

And the recent matter is the only one I can contact them about, but it's the same DCA.

[Learnerlitigator]

It seems to me that the POC for the default CCJ is somewhat vague in that it gives no dates, should I assume that the termination and assignment particulars would/should have been attached to the claim originally or at the very least should be available to the court @ hearing?

PART ONLY OF MONIES DUE UNDER REGULATED CREDIAGREEMENT NUMBER

888888888 BETWEEN

****** T/A ******AND THE DEFENDANT THE BENEFIT

OF WHICH WAS ASSIGNED TO THE CLAIMANT ON **/**/2006 THE AGREEMENT

TERMINATED UPON THE DEFENDANT(S) FAILURE TO COMPLY WITH THE

TERMS OF THE AGREEMENT AND/OR THE STATUTORY NOTICE OF DEFAULT

SERVED BY ***** T/A *********

 

As I don't recognize the OC and never corresponded with the claimant at the address served, I can only assume the address they were given by the OC was different to the address served and the DCA has served on an address that they believe they had traced.

 

How the hell am I supposed to recognize the validity of the claim from so little info?

[lookinforinfo]

I may be wrong but it reads to me as if the debt was assigned to the current creditor in 2006. They then defaulted the debtor and took them to Court and a CCJ issued as the defendant did not turn up.

So while you may not recognise this creditor, it may not be surprising as they appeared to have gone for a judgement pretty quickly after buying the debt.

 

Are you sure you did not have a debt from another company for around that amount [probably a thousand or so less]. No point in spending money on a set aside until you are sure they have the wrong guy.

[Learnerlitigator]

I am 100% certain that I did not correspond with the DCA at the address served or at any other address. My difficulty is that: in December 2005 we had a horrendous house fire, I was already disabled prior to this but suffered terrible injuries in the fire and almost lost my life. As one can imagine a great deal of paperwork was either destroyed or removed amongst the debris. My family were placed in temporary accommodation and I joined them some 8 weeks later when I came out of hospital. We were there until April 2006 and then took rented accommodation (the address served). The person that owned that house died and the family wanted to sell so we moved again to our present home.

 

The POC do not help me with regards to recognizing whether or not I owe the debt the "part only" is

 

I genuinely do not know but am worried that as I can't prove that I did not correspond with the claimant all they need do is attest to have sent blah, blah, blah and blah and I get to have sight of nothing unless it is set-aside. As I say at the beginning of the post if it is proven to be mine I will pay it before a new judgement is recorded on the register. If there is a balance to the "part only" they can whistle because they can't take the same matter to judgement twice. But I REALLY don't want to pay a debt that isn't mine.

I will get full relief of court fees but could get stuffed for costs I suppose?

[lookinforinfo]

If you go for a set aside without knowing who the original creditor is, you run the risk of finding that you did owe the money and not being able to get the CCJ removed and the DCA will

have confirmation of your address from the set aside application.

 

So it would be quicker and cheaper to cca the DCA on both debts or certainly the debt that you do not know who the original creditor was since whatever way you play it, the DCA will have access

to your address. At least then you will find out the OC.

[Learnerlitigator]

I can't CCA on the CCJ debt as DCA has judgement already. I don't need to hide my address from them because debts I do know of would be statute barred for sure because I have been paying as per contract on everything I was aware of post fire, it's only anything that might have been in default before the house fire in early December 2005 that could be in the hands of a DCA. I am grateful for your input though as otherwise it's too easy to do something rash and end up in the poo.

[lookinforinfo]

Sorry, I forgot that you can't do that now.

 

In that case send this letter and see what they say-

 

Name/Address:

 

Date:

 

Dear Sir/Madam

 

You have contacted me/us regarding the account with the above reference number, which you claim is owed by myself/ourselves.

 

I/we would point out that I/we have no knowledge of any such debt being owed to (insert company name).

 

I am/we are familiar with the CPUTR 2008 and the Office of Fair Trading's Guidance on debt collection, which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

 

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. AND in not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

 

Furthermore ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.

 

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt in question.

 

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to Trading Standards and also inform the Office Of Fair Trading of your actions.

 

I/we look forward to your reply.

 

Yours faithfully

Categories:

 

Debt Collection Library

[Learnerlitigator]

I can't send that either in respect of the CCJ, they have not contacted me on that particular matter.

The discussion is showing very well that the practice of gaining a default judgement ties the defendants hands very effectively. I think the DCAs do this deliberately when they receive no response from an address irrespective of whether or not the address is occupied. If I get the opportunity I will raise that point at a hearing. The DCA is certainly not using ALL means to ensure that they have the right person at the correct address and therefore cannot accurately say that they issued at the last known address (if that address is not the one at which the account originated).

[Learnerlitigator]

In a couple of hours I will send the following by recorded (signed for) delivery. So if anyone sees issues with it please post swiftly. These are in relation to the non-CCJ matter which was addressed to me at my current address.

 

Date: 01.09.2012

 

Dear Sir/Madam

You have contacted me in relation to an account ref: ...........

Your letter was dated: 22.08.2012 citing a demand that I contact you by 05.09.2012, consider yourself so contacted. Despite having had no correspondence with me you are demanding money

I DO NOT acknowledge ANY debt is due to you from me under this or any other account/reference and deny your assertion that I am aware of the matter. Therefore I declare this matter to be in serious dispute pending proof to the contrary.

I am informing you that the person you have contacted is registered physically disabled and is receiving treatment in regard of their mental health. This places a further duty of care upon you under the relevant guidelines.

 

I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77/78 of the Consumer Credit Act 1974.

 

I require you to provide me with a true copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days). You are reminded that should you fail to comply with my request; the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR). I enclose a personal cheque in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, returning the fee and then remove the incorrect entry from your systems.

 

I do expect the main actions to be dealt with, as matter of course, and look forward to hearing from you within the prescribed timescales quoted.

For the avoidance of doubt the OFT Guidelines state: “You don't have to give any documentation to the debt collector. They must provide information to you to prove you owe the money.” And as you have contacted me at the above address you are obliged to have satisfied yourself as to my identity using all possible means BEFORE demanding money from me and furnishing me with personal details regarding a debt.

Having regard for the above please do not waste my time by asking me to provide you with anything further to validate my name and/or address as I will not adjust the date for compliance accordingly.

 

 

Yours faithfully

Digitally signed

and

(recorded delivery dated):01 September 2012

 

Data Protection Act 1998

Subject access request

 

Dear Sir/Madam

You have contacted me in regard to an alleged debt using the name Mr * * with the reference number: ******** and at the address given above. I am not required to acknowledge, admit or deny any claim here. However you are required to comply with following:

 

Please supply me with a copy of all information your company hold on me including a list of accounts and details of payments. Under the Data Protection Act 1984 and 1998, and including the right of subject access under these acts, I hereby request that you supply me with any and all historical data in your possession which relates to me and to which I am entitled under section 7(1) of the Act.

 

This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement/s and any terms and conditions that applied to the account/s at the time of default and at the time the account/s was/were opened.

 

2. True copies of any notice(s) of assignment and default notices or enforcement notice(s) that you/or any original creditor(s) sent me, with a copy of any proof of delivery/postage that you hold.

 

3. Details of any collection charges added to the account/s; specifically, the date they were/it was levied, the amount of the charge, a detailed financial Breakdown of how the charge was/charges were calculated, and what the charge covers/charges cover.

 

4. Specific details of the fees/charges levied by any other agency in respect of this account/these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

 

5. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

6. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

7. Copies of statements for the entire duration of the credit agreement/s.

 

8. Termination notices

If you store any of the older records on microfiche, please be aware that the Information Commissioner deems this to be a relevant filing system under the Act. As such, any microfiche data must be sent to me in fully legible and comprehensible form.

 

Additionally, where there has been any event in your processing of my information which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my business with you.

 

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec)

 

You are reminded that you are obliged to supply all the above documents in line with the Information Commissioners Technical Guidance update (Dated August 2007)

 

I enclose a personal cheque of £10.00 which is the statutory fee. Note that these funds are not to be used for any other purpose. You have 40 days in which to comply.

 

Please note that the above address is the one which you have already used to communicate private business to me which you purport to be mine and which you have hitherto found to be acceptable. Therefore I shall not adjust the date for your compliance to take account of ANY further correspondence.

 

Yours faithfully

Digitally signed

[Learnerlitigator]

Letters have gone off, cheques signed by Mrs. and count down begins. I make it 20.09 for the CCA and 10.10 for the SAR. Meanwhile I hope my CCJ is either set-aside by CCBC or transferred for a hearing to my local court. Allowing for a 6 week lead a hearing will hopefully not take place until I get info (or not) from the DCA on the other matter.

[lookinforinfo]

Just came on line. The letters are fine and my fingers are crossed that you get the response that you want.

 

Please let us know when you receive the required paperwork.

[Learnerlitigator]

Thanks for your continued interest lookinforinfo.

Could somebody please clarify the quality required of a copy CCAgreement as applied to pre 2006 because I understand that changes have been made (2007?) and DCA might be able to get away with a reconstructed agreement that does not bear the relevant address and signature simply by swearing it to be true etc.

[Learnerlitigator]

Lovely, Letters received and signed for at DCA.

[Learnerlitigator]

I expect to hear from the CCBC any time now and am starting to consider my grounds for setting aside the judgement. Please take a look and see if it's okay or too many "the applicant"s or if the last piece is dangerous. Comments welcomed please.

 

 

The applicant is a litigator in person and apologizes in advance for any errors in protocol or procedure.

(1). The applicant is seeking an order to set-aside the judgement by default awarded by the Northampton CCBC on **/11/2008 in favor of DCA NAME HERE Limited.

(2). The applicant believes that the claim was improperly served in that it was served at an address that was vacant at the time.

(3). The applicant is concerned that the claimant would or should have been aware that the defendant was not residing at that address because there had been no correspondence between the parties in the 18 months or so between the alleged assignation of a debt and the date of issue.

(4). The applicant is 100% certain that the only accounts opened by himself in the 2 years he lived at the address between April 2006 and May 2008 were for utilities.

(5). The applicant has no knowledge of OC HERE and to the best of his knowledge and belief has never had an account or product from them. However if the applicant had had an account or product from them it would have been at a different address to that upon which the claim was issued due to the assertion made above in (4). And therefore as there had been no correspondence or meeting between the parties confirming the address as that of the defendant it was not his “last known address”, for the purpose of serving documents. That a Mr Learner litigator was registered on the electoral role is not enough to satisfy the requirement that MR L. Litigator and the defendant are related in more than name

(6). The Particulars of Claim (POC) are vague in that they do not give dates for the agreement, default or assignment notices indeed they do not even tell me whether they refer to a Consumer Credit Agreement (CCA) or a Conditional Sale agreement (CSA) simply that it is a “regulated agreement”.

(7). The defendant believes that the claimant has neglected to give sufficient information to show the cause of action because a default judgement was a sinecure in this instance as the defendant was never going to see the claim pack in any event. The POC certainly does not seem to have been prepared by someone you would expect to know how to issue a claim and expect that claim to be challenged.

 

If the Court were to take the same view it might be moved to strike out the claim as an abuse of process and I would offer this as an alternative to setting aside the judgement.

 

If the application to set-aside is successful then the applicant intends to defend the claim in full but as things stand the POC are so vague that he would be embarrassed to plead.

Edited September 5, 2012 by Learnerlitigator

[Learnerlitigator]

I forgot a bit: (5). The claim is for “part only” I understand that pursuant to the County Court act 1984, a claim arising from a single cause of action cannot be split into 2 or more claims. There is no reference to the amount of the “parts” in the POC

Edited September 4, 2012 by Learnerlitigator

[Learnerlitigator]

bump

[lookinforinfo]

I have asked one of the site guys to take a look at your POC as I they are not something I have had to do too much with.

[AndyOrch]

Furthermore any claim for partial monies is averred Contrary to s35 of the county court Act 1984 s35 Division of causes of action.

 

Looks fine Litigator.

 

Regards

 

Andy

[Learnerlitigator]

Thanks both, do I need to add that sentence Andy?

I'm also concerned that if I get the set-aside and the DCA resend it can they alter the original claim in any way? eg. leave something out or change the amount they are claiming.