abuse or process?

[debt4get]

hi guys need a little bit of advice,

had a car loan with black horse some years ago, anyway due to ill health had to hand back car and there was a shortfall, contacted black horse and they set up a payment plan of £5 per month which they had every month for 2 and half years, never missed a payment debt is for £1600..anyway fast forward to today, debt sold to DLC have continued to pay 5 quid a month, letter today saying this is now unacceptable and they are going to issue county court proceedings and then go for a charging order, in order to 'secure the long term debt' now obviously have continued to pay the fiver a month as on assessment esa no other income. and am wondering the best way forward in order to head them off.

surely if i have paid and continue to pay this is an abuse of process, and am wondering if this would be a valid defence?

[brokebutnotbeatn]

A charging order doen't achieve anything. BH sell the debt on once the loan has run its course (*whether you've been paying or not). The DCA is just chancing their arm. Tell them they bought the debt with the arrangement in place and you will continue to honour this payment until the debt is cleared; it's unlikely they will go near a court to get a CCJ (which they have to do before they can even think of going for a CO). It's just to scare you into paying more.

[debt4get]

yep know that, but they havent threatened court, with the usual drivel, their letter actually states we are in the process of issuing an N1, and if we are successful we intend to apply for a charging order in order to secure the debt, we will not insist on property being sold, but we just wish to secure the debt....now is they do issue is it possible to counter claim using abuse of courts because i have never refused to pay nor have i not paid

[unclebulgaria67]

I believe they can issue the court claim and make the request. I am not sure that they will be able to convince a judge to secure the debt, if you have been making repayments reliably for over 2 years. I suspect that you will just end up with a CCJ, with the possibility of the court looking at I&E details to see if £5 a month is reasonable or not.

 

Time to get researching cases where attempts have been made to secure debts in this way. I am sure there have been some.

[brokebutnotbeatn]

If you do get a claim post into the legal forum and get advice then. A judge will never ask you to pay more than you can afford and may even ask you to pay less. Its all a long way off. meanwhile I would SAR BH so you can start to ascertain the level of the debt and CCA the DCA so you can start to look at what you actually owe and how the figures were arrived at. You have a lot on your side in that you have dealt with this responsibly from Day 1 and will be able to demonstrate that. I still think this is just scare mongering. The DCA wouldn't be Capquest would it?

[BRIGADIER2JCS]

As you have been paying and if your finances remain as they were when the arrangement was made with the creditor a judge would not I think order you to pay more.Have you had a statement of the current balance?

[debt4get]

nope to any of the above in terms of statements etc, have paid every month without fail by standing order, don't think will be asked to pay more on assessment esa of 71 quid a week, however, i do not want them to get a charging order, dont really wont the ccj, as they could theoretically get a judgement with 8% interest, they actually state in letter that because the repayment of your debt is going to take many years we need some form of security!! unbelievable, they feel that this reasoning is entirely valid but we can assure you we have no intention of seeking an order of sale or use the charging order as a lever to force you to make payments you cannot afford.....so why bother?

[debt4get]

is it worth sending this?

WARNING

THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES

PLEASE DO NOT IGNORE

 

In care of:

My name (legal fiction? or Me:Family name?)

Current address

 

Date:

 

Dear Sir/Madam

 

Account details: XXXXXXXXXXX

 

Thank you or your letter dated XXXXXXX in which you have indicated that there is an imminent court action should I not respond to your letter.

 

In your letter you have given notice that “our client” is preparing to initiate legal proceedings over the non-payment of the alleged outstanding balance on the above account.

 

Given that this matter is now subject to potential legal proceedings, you are obliged to provide, under the Civil Procedure Rules, information to ensure that all parties are on an equal footing, and also to ensure the claim is dealt with expediently and fairly, avoiding an unnecessary burden on the Court's resources.

 

Under the Pre-action Practice Directions - Protocols 4.6 of the Civil Procedure Rules, I request that you supply copies of the following documents:

 

1) A true copy of the executed contract and any terms and conditions that applied to the account at the time of default.

 

2) All records you hold on me relevant to this case, including but not limited to

1. A transcript of all transactions, including charges, fees, interest, payments and both the amounts of credit and any repayments made to the account.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

3. Where there has been any event in the account history over this period that has required manual intervention by any person, disclosure of any indication or notes that have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to the account held by me with Lowell Financial/Red DCS.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you sent to me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charge added to the account: specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

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

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

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

10. Copies of statements for the entire duration of the credit agreement.

This information is required within the next 14 days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to deny me the opportunity to review my position in relation to your claim of alleged breach of agreement and any possible counter-claim.

 

Please note that, as you have initiated this action, failure to respond to this letter will place this account in clear dispute and as such you may not:

• demand any payment on the account, nor am I obliged to offer any payment to you;

• add any further interest or charges to the account;

• pass/sell the account or outstanding balance to any third party;

• register any information in respect of the account with any of the credit reference agencies; or

• issue a default notice related to the account.

Should you ignore any of the above, I reserve the right for legal action for redress, and will show the court this letter. I will also report your actions to any authority that I see fit and will request that your suitability to hold a consumer credit licence be reviewed.

 

I look forward to hearing from you in due course.

 

Yours faithfully,

[BRIGADIER2JCS]

The carging order in your situation is really pointlesss as no judge would grant an order for sale for this small amount.

You really must insist on an up to date statement on this debt.

[debt4get]

yeah i have got a statement from about 6 months ago and minus the amounts i have paid it is correct at 1600 quid...so dont really need a statement, plus they state in letter they have no intention of forcing a sale they just want to 'secure the debt over the long term' i still come back to my original question..is this an abuse of process? have paid, continued to pay, never missed a payment.. was under the impression that going for a ccj was to in effect 'force people to pay' not forcing people into securing a debt that is unsecured...i really dont get their problem, and believe this is a red herring in order to force a sale

[unclebulgaria67]

Yes send the letter in your post.

 

They probably think that you will increase your payments or that you would not defend any court claim they issued. At least sending the letter, may get them thinking.

[debt4get]

yeo ok gonna email and then put in post tomorrow....

[BankFodder]

Abuse of process refers to abuse of the courts process in which the abuser is misapplying or manipulating the court rules in some way. That is not the case here.

 

I think that as long as the installment did not have some limitation attached - or a review date in place, then they are treating you unfairly and in breach of COBS.

However you will have to wait until they bring a court case against you in order to use this against them.

 

Meanwhile - keep on paying as agreed - even if they start refusing payments. They are obliged to accept payments so that your liability can be reduced.

[debt4get]

surely they are manipulating the court process by applying for ccj, when i have never refused nor kept any payment for nearly 3 years now, all their instalments had a review date in place, normally for 6 months they would write, i would ring and renew after discussing 'no change in circumstances' they have simply pulled the plug on this, and said they are going for a ccj....will continue to pay as i have every month, they are not even looking for a larger amount each month, they simply want the ccj plus charging order

[BRIGADIER2JCS]

No bankfodder is right, they are at liberty to start action at any the BUT the fact that you have kept to an arrangement fpr nearly 3 years and never faltered is going to help you should they take action.

 

If your circumsatnces have not changed since the paympents were agreed they will I think get no where near the court, and if your circumstances have deteiorated then the could end up with less over a much longer period

[andydd]

I second Brigadiers comments, incidently it is not an abuse of process or anywhere near it, an abuse would be for example, court action was started, they lost and then start another claim which is identical to the first.

 

Andy

[debt4get]

yeah thanks guys...was just wondering...it seems to me though that they are surely wasting courts time, in attempting for enforce a debt using the courts in order to get me to do something that i am already doing. they must have some ulterior motive otherwise why bother? if they go for ccj i wouldnt be able to contest as i do owe the money and have never disputed this nor never paid

[andydd]

As this would be their first court action it wouldnt be an abuse such as restarting a claim as I mentioned above.

 

BUT if a claim is totally without merit (and has no chance of success), which incidently I dont actually think is the case here then you can use the Summary Judgment process to get a case thrown out at a very early stage.

 

I dont think there really is an ulterior motive, it is quite common for a company to agree a plan and then suddenly out of the blue start hassling you for more/all the amount, this often happens when they sell on the debt, Im in same situation with Egg..I was paying them..they sold on debt, now new company want all the amount (although havnt started any legal action), the end result is that now no-one is getting anything !

 

Andy

[debt4get]

yep thanks andy, was wondering what i could use a defence, is there a link to any summary judgement process? that i can actually put on the N1 if and when it arrives...obviously cannot contest amount, as this is correct, this actually arose because i hadnt changed my standard order to DLC and the payment went to black horse, they rang i told them it had been paid to black horse, and asked them to recover the money, they said unacceptable and hence letter stating legal action

[andydd]

Summary Judgment can only be used if the other side has absolutley no case, it doesnt mean that they will definatley lose, its only used where there is no possible claim/or defence and its used to bring everything to a halt to save the court and both sides time and money.

 

I dont think this applies to you, you did borrow the money and have been paying them off and they would have a legal right to chase you for the balance, this doesnt mean that they would definatly win, you may have defences such as they dont have original signed agreement or assignment process wasnt correct (youll find lots of further info. from other threads).

 

As mentioned above I dont think a charging order would be issued, as they have threatened court action you could use pre-action protocls to ask for neccassary paperwork, Im sure others can fill you in more on this.

 

Andy

[debt4get]

yep already issued a pre-action protocol, i find the whole thing a bit of a waste of any courts time as the money is already being paid, so attempting to gain a judgement to enforce an order would seem to me just ridiculous, i could understand if payment had not been paid or refusal to pay, and was hoping that i could use that as a defence if the N1 was issued, of course this could just be a empty threat....who knows...

[toymaker1]

Abuse of process refers to abuse of the courts process in which the abuser is misapplying or manipulating the court rules in some way. That is not the case here.

 

I think that as long as the installment did not have some limitation attached - or a review date in place, then they are treating you unfairly and in breach of COBS.

Hello

Your remarks about abuse of process are useful.

Would you be able to say if, in your opinion. abuse of process would apply to the following situation.

Suppose a debtor has a genuine dispute with a credit card company, and the credit card company totally ignores the debtor's reasonably expressed letters of complaint over a year or more. The debtor suspends monthly payments pending resolution of the dispute, because the creditor is totally ignoring all complaint letters. Then the credit card company makes a county court money claim for the debt, making no mention of the fact that a dispute exists between the creditor and the debtor, and having never dealt in any way with the debtor's legitimate complaint.

Would that be considered abuse of process by the creditor?

 

Thanks for any advice.

[BankFodder]

Hello

Your remarks about abuse of process are useful.

Would you be able to say if, in your opinion. abuse of process would apply to the following situation.

Suppose a debtor has a genuine dispute with a credit card company, and the credit card company totally ignores the debtor's reasonably expressed letters of complaint over a year or more. The debtor suspends monthly payments pending resolution of the dispute, because the creditor is totally ignoring all complaint letters. Then the credit card company makes a county court money claim for the debt, making no mention of the fact that a dispute exists between the creditor and the debtor, and having never dealt in any way with the debtor's legitimate complaint.

Would that be considered abuse of process by the creditor?

 

Thanks for any advice.

Very happy to respond but please would you start your own thread for this.

Thanks

[toymaker1]

Very happy to respond but please would you start your own thread for this.

Thanks

OK.

How do I start my own thread?

[BankFodder]

Start a new thread