Jump to content


not_without_fighting

Declared bankrupt in my absence

style="text-align:center;"> Please note that this topic has not had any new posts for the last 2586 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

Hello, I am a new user. I hope someone can help as I have a court hearing early November. I stopped paying my Credit Cards middle of 2010 after I lost my job. I could not reach an agreement with the Credit Card companies to pay a smaller repayment until I find a new job. Few months later, I was getting letters and calls from different Debt Collection Agencies. I ignored their letters and phone calls till they stopped. Earlier this year, a man came to my door and asked of me. My brother opened the door as I was not in as he was here on holiday from abroad. He asked the man who he was and which company he was from. As the man appeared suspicious and was evasive with his reply, he refused to confirm my name when he was asked and the man asked him to take a letter from him. He refused to do so and he throw it through the door and said he was served, thinking he was me.

 

I usually do not open the letters and return them back to the senders. But I received a letter from the County Court. This I found out because it had the County Court address on the envelope and opened it to find out that I have been declared Bankrupt in my absence. Apparently, this was the second time the hearing took place which I failed to attend.

 

To my surprise, the only time I got a letter from the Court was when I found out that I have been declared bankrupt. There was no letter from the Court to attend the first and the second hearing. There was no way I could have missed the letter if it was addressed like the only one I got, which had the Court's address on it. I found out from this website to contact the Court immediately and apply for a stay of proceeding and advertisement. I also said that I was not aware of the Court hearing or having any knowledge of owing the company that has filed bankruptcy against me any money. The Court has granted another day for the hearing early November. I sent 2 recorded delivery letters to the company. One of the letter I sent with £1 postal order giving them 7 days to provide original copy of the Credit Card Agreement. I have received a reply saying that they have requested it from the original Creditor. Another letter (SAR) I sent with £10 postal order requesting full information about the debt (used a template I copied from this website). I have received a reply saying that they can only provide evidence of purchase of the debt and any communication they have with me, but that I need to contact the original Creditor for earlier documents.

 

Two things I will like to mention:

1. The original creditor was xxx Card which I signed the agreement with. It was later taken over by xxxxxxxcard when xxx Card pulled out and no longer providing Credit Card facility.

2. The Credit Card number on the Court paper is different from the number of the card I stopped paying. The only similarity is the first 4 digits, everything else is different.

3. I did not receive any letter from xxxxxxxxxxx that the debit has been sold to the company that took me to Court.

 

Can anyone advise on how I should prepare my defense for the Court appearance. Should I send SAR to xxxxxxxxxxx request for a copy of the original credit agreement, even though I know that all the previous bills I still hold do not match the card number on the Court paper. I am worried they might contact the company that took me to court and inform them of my possible defense. Please help anyone. Thank you.

Share this post


Link to post
Share on other sites

Hello and Welcome,

 

I have moved this thread to our Legal Issues Forum.

 

Regards.

 

Scott.


 
 

Any advice I give is honest and in good faith.:)

If in doubt, you should seek the opinion of a Qualified Professional.

If you can, please donate to this site.

Help keep it up and active, helping people like you.

If you no longer require help, please do what you can to help others

RIP: Rooster-UK - MARTIN3030 - cerberusalert

Share this post


Link to post
Share on other sites

Yes you should SAR the original creditors. The change of card number may just reflect that there was a change in ownership of the debt, with a new card issued. Th SAR is a simple request for all information on your file, so they won't contact the new debt owner.

 

Suggest that you obtain proper legal advice about how to get the bankruptcy removed. It will be about technical matters of process and not the debt as such. e.g about how the SD was served and how the courts service sent notice of hearings. Suggest you obtain the court files related to the bankruptcy application, which will presumably contain copies of letters sent to you.


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

Share this post


Link to post
Share on other sites

Hello unclebulgaria67 and thanks for your reply. I will send SAR to the 2 original creditors 1st thing tomorrow and obtain the Court's file relating to the bankruptcy application. However, I did receive reply to the CCA and SAR I sent to the company that took me to court.

 

CCA - Although I sent the letter to the company directly, the reply came from their Solicitor thanking me for contacting them about the credit agreement and have requested a copy from my original lender. It further states " We will do our very best to send you the information you asked for within 12 working days, but this does depend on when your original lender can send it. We will let you know if we do not hear from them in time." On the top of the letter, it states the company that took me to Court as the " Original Client".

 

What I would like to know is:

1. why is it the solicitor replying a CCA request?

2. why are the saying that the company that took me to court is the original client?

3. should I ignore the Solicitor's reply to the CCA and send a follow up letter to the company saying I'm yet to receive their reply to the CCA and where can I find a template letter that will explain all the legal consequence of them not providing the CCA as requested?

 

SAR - I sent a recorded delivery on 04/09/12 and it was delivered and signed for on 08/09/12. The company replied the SAR on 18/09/12 saying they are dealing with my request and will reply within days. But information they are going to send only will contain their dealings with me and I will need to contact the original creditor prior to the sale of the account to them.

 

What I will like to know is:

 

1. should I only send SAR or both SAR and CCA to the original creditors?

2. since the new hearing is early November, what should I do if I don't get an answer on the SAR back from the previous creditors?

3. would I be able to ask for a continue stay of the proceeding until I get the reply back?

4. I did call the original creditor in relation to PPI and was told that it was still under judicial review and still awaiting judgment. Can I use as part of my defense that the account is under dispute?

 

I await your humble reply.

 

Cheers.

Share this post


Link to post
Share on other sites

What I would like to know is:

1. why is it the solicitor replying a CCA request? Some of the solicitors have ongoing agreements with debt companies to handle the debts/legal issues at arms length.

2. why are the saying that the company that took me to court is the original client? Perhaps it was the original creditor ?

3. should I ignore the Solicitor's reply to the CCA and send a follow up letter to the company saying I'm yet to receive their reply to the CCA and where can I find a template letter that will explain all the legal consequence of them not providing the CCA as requested? What consequences of not supplying a copy of the original CCA. According to your post, you are bankrupt, so would have been already registered. I am bit confused by you saying this, as I would have expected people to be crawling all over you offering their help, plus an official court insolvency official appointed. Yes you can specifically ask for the CCA as part of your SAR request to the original creditor.

 

1. should I only send SAR or both SAR and CCA to the original creditors? Just SAR, asking for all data and documents.

2. since the new hearing is early November, what should I do if I don't get an answer on the SAR back from the previous creditors? You could advise in the SAR that the request is related to court proceedings, so would appreciate if the request could be actioned within 14 days.

3. would I be able to ask for a continue stay of the proceeding until I get the reply back? I think you would have to ask for the permission of the other side and the court.

4. I did call the original creditor in relation to PPI and was told that it was still under judicial review and still awaiting judgment. Can I use as part of my defense that the account is under dispute? As part of the SAR you can request for copies of all statements, to include full details of all charges any PPI premiums that were included.

 

I await your humble reply.

 

Cheers.

 

Answers in RED.

 

Which solicitors replied to you ? Who are the original creditors ? This may help others who have had experience with the same people offer their advice.

 

 


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

Share this post


Link to post
Share on other sites

Here is a sample of an SAR requesting certain documents. You can amend as you wish. An SAR is not a standard format letter, so you can request what you like. It may take them more time, if you ask for things which will take time to supply.

 

Data Protection Act 1998

Subject Access Request

 

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

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

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any 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 account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent 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 charges 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 whom 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.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

Share this post


Link to post
Share on other sites

Thank you for the quick reply. The original creditor was Sky Card and it was later taken over by Barclaycard. The company that took me to court is Lowell Portfolio I Ltd and their solicitor is Hamptons Legal.

 

Yes, I was made bankrupt by the Court in my absence, but immediately I received the court's letter informing me of this, I applied a stay of proceeding and say of advertisement, sighting reasons that I was not aware of the bankruptcy charges and court hearing (I got the idea from this website). I must say that the only letter I ever received from the court was the letter declaring me bankrupt. I have received a letter from the Official Receiver requesting I attend an interview. I called them to say that I have applied for a stay of proceeding and I will not be attending any meeting till after the hearing. I was told that they have not advertised it yet, but my name is already on the IIS website. I will be able to say more later today after a visit to the Court. Cheers.

Share this post


Link to post
Share on other sites

Hi

 

Please be careful with the Official Rieciever as they are Appointed by the Courts to act an there behalf so could you please clarify have you written to and had confirmation from the official reciever that they accept this?

 

You must remember the Official Reciever does not know exactly what has happened and is only acting on the courts behalf in the backruptcy so you really need to keep them in the loop although you are fighting this.

 

This link to the Insolvency Service may be helpful:

 

www.insolvency.gov.uk/

 

Also this Pdf:

Edited by stu007

How to Upload Documents/Images on CAG - **INSTRUCTIONS CLICK HERE**

FORUM RULES - Please ensure to read these before posting **FORUM RULES CLICK HERE**

I cannot give any advice by PM - If you provide a link to your Thread then I will be happy to offer advice there.

I advise to the best of my ability, but I am not a qualified professional, benefits lawyer nor Welfare Rights Adviser.

Please Donate button to the Consumer Action Group

Share this post


Link to post
Share on other sites

I have been through EXACTLY what you have.....first thing to do is to visit the court and pick up ALL the paperwork in the file (If you have NEVER seen any petition or stutory demand then you will find it interesting to see how they had attempted personal service - this is important).....you have obviously been contacted by The Official Receiver with regards to an interview (make it known to them that you are applying to annul), you should apply for the petition to be annulled. (if you are up for the fight) If there was a hearing which you were not aware of then the claimant HAS to serve an affadavit of continued service after any adjourned hearing. (which you should have received) this was the point that won my case. (despite a lot of other issues). Send off for the CCA's and SAR as has been suggested above. When you get it annulled then you will under the slip rule go back to the original petition hearing.

 

If you need some help please ask.


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites

Hello, went to the court to view my file. Although I was not given a copy of all the documents in the file, but I was given a copy of a page on a form 6.1. A statement was entered under the heading "Particulars of Debt". The statement states "The claim of the Creditor is for payment of £xxxxx.xx being the balance of monies due against a credit account made between the Debtor and Barclays Bank PLC t/a Barclaycard in respect of a Credit Card, under account number xxxxxxxxxxxxxxxx, such agreement being regulated under the Consumer Credit Act 1974.

 

The rights and benefits of the said account were duly assigned from Barclays Bank PLC t/a Barclaycard to the Creditor by way of a Debt Sale Agreement dated xx/xx/xx and notice of assignment having been served upon the Debtor by the Creditor on xx/xx/xx (following day the debt was sold) in accordance with the provisions of Section 136 of the Law Property Act 1925.

 

The balance of the debt at the date of this demand remains outstanding and due for payment by the Debtor in the amount of £xxxxx.xx despite previous written and verbal requests for payment being made by the Creditor to the Debtor".

 

I was also read an extract from the Affidavit submitted which claims that someone came to my house, I opened the door and confirmed my name. Refusing to accept the letter, it was placed through the door into the house, I took it from the floor and through it out of the door.

 

Round the time they are claiming the visit was made, I was going through separation with my partner. At that time she had asked me to leave the house. I was then staying with a friend. After confronting her about it, she said that someone came around whilst her brother was staying with her for few days and she was out to work on the day. Of course no love lost between the brother and I, but his version of the event is different from what the wrote in the affidavit. He told his sister that when he opened the door, the man asked of me. He asked him what he wanted and the man said he was from a company. Not hearing what the guy said properly, he asked him which company did he say, thinking he was from a gas or electricity company or someone from the council. The man then told him to accept a letter. He refused to accept it because the man was reluctant to repeat the company he was from, then the man dropped the letter through the door. That was when he picked it up and throw it out. Of course when she came back home the letter was not there and she thought nothing of it.

 

I asked if it was possible to summon the brother to court to explain his version of the story, because I don't think he will go simply on me asking kindly. I was told I could put it to the judge when I see him next week.

 

The court had booked an emergency session for me for next week as a result of me contacting the OR and mentioned that I have applied for a stay of proceeding and advertisement. She said that the have used their discretion not to advertise the Insolvency, but since they have not received an order from the court to stop proceedings, I will still need to fill out the form sent to me and attend the interview. I explained to her that I did include it in my application for annulment in court. She told me to visit the court again as the court should have fixed an urgent hearing to of my request for stay of proceeding. When I went to court to explain this, I was then given a date for next week for the hearing. Now I have to prepare for this, which I don't have a clue of what to say or do on the day and I still have the hearing for the annulment in November.

 

I did receive a reply from Hampton Legal, even though I sent the CCA to Lowell Portfolio 1 Ltd. It read " We have requested a copy of your credit agreement

Thank you for contacting us about your credit agreement. We have asked your original lender for a copy.

 

We will reply as soon as we can

We will do our very best to send you the information you asked for within 12 working days, but this does depend on when the original lender can send it. We will let you know if we do not hear from them in time.

 

We're here to help

In the meantime if you have any more questions we'll be pleased to help you.

 

Please do phone us on.....

 

- My question is why is Hamptons Legal replying my letter when I addressed and sent by recorded delivery it to Lowell?

- Why has Hamptons Legal listed Lowell as the original client on their letter:

 

Lowell Ref: xxxxxxxxxxx

Original Client: Lowell Portfolio 1 Ltd

Original Reference: xxxxxxxxxxxxxxxxxxxxxx

Current Balance: £xxxxx.xx

 

- By listing Lowell down as the Original Client, do this not remove Barclaycard from the picture?

- Since Hamptons Legal are saying Lowell is the Original Client, should it not be Lowell providing the copy of the credit agreement?

- In my letter to Lowell, I requested for a copy of the credit agreement and a full breakdown of the account including any interest charges applied. The reply from Hamptons Legal only talks about the credit agreement.

- Under the Consumer Credit Act 1974, should this debt not become unenforceable if they are unable to provide both documents?

 

I also got a reply from Lowell regarding SAR I also sent to them. This time, it was Lowell that replied and not Hamptons Legal. They also listed themselves down as the original Company (this is definitely confusing to me). Although the recorded delivery says that it was delivered on the 8th of September. I have just received the reply and they are talking of another 40 days before they can reply. It says " We would like to clarify that the data you will be provided will only relate to the original account purchase details and the subsequent information held by our company from our dealings with you. The Data Subject Access Request will not include information held on the account by the original creditor prior to the sale of the account. For that you will need to make a separate request to the original creditor".

 

I don't know why they decided to reply the SAR, but not the CCA.

 

I look forward to hearing from you all.

 

Thank you.

Share this post


Link to post
Share on other sites

I think for next week, it would help if you had a witness statement from the wifes brother about what happened with the server who visited the house. Also you will need to submit testmimony that you were not living at the house at the time. Perhaps a witness statement from someone where you were living. It may be worth making the effort getting these, as you can use them again in November to show that the SD was not served correctly.

 

Presume the judge will just want to know that you knew nothing of the statutory demand and then they will put matters on hold until November. Hence why it would be helpful to have the information above.

 

Lowell and Hampton are the same, just different desks. Hampton is just the branding used to separate the bit, which is registered for legal reasons.

 

Lowell are also registered as a name for the debt buying and Hampton will show Lowell portfolio as their clients.

 

So they are waiting for the CCA from Barclaycard and will supply the SAR in due course. If you send an SAR to a debt company, it won't contain much, as they start off with a spreadsheet entry about the debt and build from there. They won't have a file of information from Barclaycard.

 

Hopefully you have sent an SAR to Barclaycard and you will hear back in due course.


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

Share this post


Link to post
Share on other sites

Do you have the annulment form 7.1a I think it is - you can find it here - http://www.bis.gov.uk/insolvency/About-us/forms/england-and-wales

 

If they are stating that it was served on you and it WASN'T then you have a strong case to get it annulled....however you will need to provide a witness statement from your brother, and one from yourself (your brother to state that the documents were served on him and he didn't pass them on to you, and another to state that you had never seen a statutory demand or petition until you found out you were made bankrupt - there is a similar example here - http://www.consumeractiongroup.co.uk/forum/showthread.php?363531-Bankruptcy-notice-issued-by-lowell/page3&highlight=lowells

 

In line with them NOT serving it on you but claiming to have done this then you should refer to NAMASIKU LIANDU vs GO DEBT LIMITED

 

"to comply with section 7 of the 1985 Act they must be served on the alleged debtor in person. It cannot be left at an address or given to any other person who might be there at the time"

 

"The petitioner's evidence was that his son did not pass on to him the statutory demand. . He would have challenged it had he received it."

 

The defendant also wishes to refer to

 

Then r 6.15 says:

(1) Service of the petition should be proved by affidavit.

(2) The affidavit shall have exhibited to it -

(a) a sealed copy of the petition, and

(b) if substituted service has been ordered, a sealed copy of the order;

and it should be filed in court immediately after service.

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly. The rules provide in terms that the petition must be supported by an affidavit of service showing how the petition was served, and express reference is made to substituted service and the way in which that then is to be proved, which involves the affidavit of service having with it a sealed copy of the order.' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites

The NAMASIKU LIANDU vs GO DEBT LIMITED is in the Scottish Courts so I need to check if it is valid in the English Courts (maybe a kind cagger may advise)


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites

The alleged creditor has provided no consumer credit agreement with the prescribed terms despite a legal request made under the Consumer Credit Act 1974

 

The alleged creditor has not provided any default notices in the prescribed form.

 

The alleged creditor has provided no statements for the duration of the account.

 

The alleged creditor has not provided any details of any potentially missold payment protection insurance which may have been added to the account

 

The alleged creditor has not provided any notices of assignment.

 

 

 

 

The Consumer Credit Act in section 78(6) States that

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement;

 

It must also be noted that the agreement must contain the prescribed terms.

 

Consumer Credit Act

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order the 2006 Act means the Consumer Credit Act 2006.

Commencement

3. (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of debtor and hirer in section 189(1) of the 1974 Act wherever those expressions are used in

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

 

REFERENCE TO CASE LAW

 

  • As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:


  • ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interestlink3.gif.’

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signaturelink3.gif of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the bankruptcy petition was issued.

DEFAULT NOTICE

 

 

The Need for a Default notice

  • Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

 

  • It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

  • Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

  • Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

 

  • Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim,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, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], 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, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

The defendant also wishes to make it clear that there is no avoidance available by the claimant in his duties to provide the agreement under the Consumer Credit Act 1974 and

 

I refer to

 

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MANCHESTER DISTRICT REGISTRY

Jones vs Link Financial

 

  1. In my judgment the reason for the reference to "duties" in section 189 is that an assignee only becomes the "creditor" where the statutory duties relevant to the enforcement of the creditor's rights have passed to the assignee. This will not be the case where there has been an equitable assignment of which no notice has been given. In such a case the debtor will remain legally liable to the assignor and the assignor will remain responsible for the performance of the statutory duties relating to enforcement, such as duties to provide information and notices.
  2. Where, however, there is a legal assignment the debtor's liability will be owed to the assignee and it is the assignee who will have to perform the statutory duties relating to enforcement. This is not because he becomes under a contractual obligation to perform those duties, but rather because he cannot assert his rights under the regulated credit agreement without accepting the statutory obligation to perform duties under the 1974 Act relating to enforcement of those rights.
  3. The legal assignee stands in the shoes of the assignor. The enforcement of the assignor's rights under the regulated credit agreement was subject to performance of the statutory duties laid down in the (Consumer Credit) 1974 Act, and the legal assignee's rights are similarly so subject.

 

 


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites

You can clearly see here - http://webarchive.nationalarchives.gov.uk/+/http://www.insolvency.gov.uk/pdfs/guidanceleafletspdf/Canmybankruptcybecancelled.pdf

 

You can apply for an annulment at any time

if:

the bankruptcy order should not have

been made, for example because the

proper steps were not taken when

obtaining the order


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites

When did you take the credit card out can you remember ?


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites

Hello Ganymede any thoughts please ?


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites
I think for next week, it would help if you had a witness statement from the wifes brother about what happened with the server who visited the house. Also you will need to submit testmimony that you were not living at the house at the time. Perhaps a witness statement from someone where you were living. It may be worth making the effort getting these, as you can use them again in November to show that the SD was not served correctly.

 

Presume the judge will just want to know that you knew nothing of the statutory demand and then they will put matters on hold until November. Hence why it would be helpful to have the information above.

 

Lowell and Hampton are the same, just different desks. Hampton is just the branding used to separate the bit, which is registered for legal reasons.

 

Lowell are also registered as a name for the debt buying and Hampton will show Lowell portfolio as their clients.

 

So they are waiting for the CCA from Barclaycard and will supply the SAR in due course. If you send an SAR to a debt company, it won't contain much, as they start off with a spreadsheet entry about the debt and build from there. They won't have a file of information from Barclaycard.

 

Hopefully you have sent an SAR to Barclaycard and you will hear back in due course.

 

Hi unclebulgaria67, yes I have sent the SAR to Barclaycard via recorded delivery. I am tracking it online to know when the receive it. Cheers.

Share this post


Link to post
Share on other sites

Have you prepared your defence / affadavit as yet ? It should be in to the courts, the opposing solicitors and the official receiver 7 days prior to any hearing......


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Share this post


Link to post
Share on other sites
Have you prepared your defence / affadavit as yet ? It should be in to the courts, the opposing solicitors and the official receiver 7 days prior to any hearing......

 

No. Didn't know I had to do so at this hearing. Would it be too late if I post it for next day delivery on Monday? Cheers.

Share this post


Link to post
Share on other sites

Hello, just was want to find out if the defence / affadavit I'm submitting for the hearing this coming friday should only be limited to:

 

1. Satement from me that I was not the person the SD was served.

2. Statement from my brother-in-law that he was the person the SD was served.

3. Statement from my friend to say I was staying with him at the time the SD was served

 

I should not at this point include the defence why I should not have been served in the first place. Further assistance will be highly appreciated.

 

Kind Regards.

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...