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    • Hmm, so.. basically have to rely on the default notice not containing all that it should and the claimant misleading the court for the reason for the application.. and judge lottery : /
    • Which would require a hearing....so the fee would be £255.00
    • When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:   a.     must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or b.     can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?   It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.   The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act. The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):   1.     Heading: Credit Agreement regulated by the Consumer Credit Act 1974 2.     Name and address of the debtor 3.     Name and address of the creditor 4.     Cancellation clause applicable to the executed agreement.   All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.   The judge also considered whether a statement like the one appearing in the reconstructed application form in Carey referring to the agreement to the terms and conditions "attached" needs to be included in the reconstituted copy. Alternatively if the application form had said "I agree to the terms overleaf", should that statement be included. The judge held that this aspect of the form is not necessary for the purpose of the section 78 copy, although there is nothing to stop a bank from putting it in or indeed from furnishing a copy of the type of application form or signature page that the debtor would have signed, as some banks have done. The statement referring to terms and conditions is not itself prescribed information and the supply of the terms and conditions which were applicable at the time will tell the debtor what he needs to know in terms of the content of what he signed up to, including the presence (or otherwise) of the prescribed terms.   In practical terms what this is likely to mean is that if the creditor chooses to use as the section 78 copy the section 63 copy, which would have been provided to that particular debtor at the time following execution of the agreement, this will be sufficient provided that the information referred to above is supplied. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.   Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?   A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.   Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form? The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.     If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?   If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.     As your agreement is post April 2007  Section 61(1)(a) and 127(3)   Consumer Credit Act 1974 would not apply.   Andy
    • well start a new thread for the court claim.   as for this one i'd await the letter of claim  
    • Useful information...   And....   https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part55
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What action can DRC`s take.

 

I am resident in Spain for the last 10 years.

 

As a pensioner I have limited resources and no assets except my house in joint names with little equity due to the property crash.

 

No assets in england ( £20.00 in Bank and £10 PSB).

 

I was paying £1 pm on debt of £4300 to MBNA(ex Alliance & Leicester)

 

They have now reassigned this debt to a DRC.

 

What can they do?

 

I know they cant get a CCJ as I am out of Jurisdiction but can they try thru a Spanish court?

 

If so they do have to use UK law?

 

Otherwise I suppose they will try to get money out of me.

 

Is it worth offering, say £500, in Full and Final settlement,

 

I cant afford to pay monthly, a least not a meaningful amount.

 

Also MBNA wasn´t charging interest,

 

will the DRC start charging interest now?

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been there 10yrs

 

no-one local ever told you they nor anyone can do anything to you.

 

dx


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been there 10yrs

 

 

 

no-one local ever told you they nor anyone can do anything to you.

 

 

 

dx

 

 

 

 

Can't do anything surely?

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yea depends how you read it :lol:


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Reclaim mis-sold PPI Read Here

Reclaim Bank Account, Loan & Credit Card Charges Read Here

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Up to you what you do. There is no reason why you cannot just continue to pay DRC the £1 per month that you have been paying and they can either take it or leave it. OR you decide to stop paying and see what happens. They could go for a European Enforcement Order, but if you dispute this, then they are back to trying to get a CCJ in the UK and then trying to get a Spanish court to enforce it. They can alternatively apply for your bankruptcy in the UK in your absence. It is for the latter reason that you might choose to pay £1 per month or at least offer this based on current affordability, as this might prove useful. If they refused to accept £1 per month, it should county against them if they tried to make you bankrupt.


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Re above. I understood from this site that as I am not resident in the UK(fiscally or physically) they cant go for a CCJ or Bankruptcy-am I right? I also thought to go for an European enforcement order they had to have a CCJ to enforce? Does anyone know if they actually send the collectors round to houses in the EU?

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Re above. I understood from this site that as I am not resident in the UK(fiscally or physically) they cant go for a CCJ or Bankruptcy-am I right? I also thought to go for an European enforcement order they had to have a CCJ to enforce? Does anyone know if they actually send the collectors round to houses in the EU?

 

No, they can go for bankruptcy in your absence, sending a statutory demand to your last known UK address. Although if they know your Spanish address they should really advise you of their intentions.

 

They can apply for a EEO where you are currently resident, but if this is disputed they are back to trying to enforce in the UK. They should not apply for a UK CCJ that you could not defend, but they may do so and then they could ask for a Spanish court to enforce.

 

In your situation, I think I would write to DRC letting them know of your poor financial position in Spain and that you would struggle to offer them £1 per month. At least then they could not say that you did not inform them of your situation.

 

I doubt that they would arrange for doorstep collectors to visit you in Spain and even if they did, they have no powers. I have heard of some debt owners passing the debt on to companies such intrum Justitia, who have offices in Spain, but I don't know to what extent they chase debts up.


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No, they can go for bankruptcy in your absence, sending a statutory demand to your last known UK address. Although if they know your Spanish address they should really advise you of their intentions.
They can't if the OP has been out of the UK for three years or more.

 

There are some restrictions on you being

able to present a bankruptcy petition if a

debtor who lives abroad fails to comply with

a statutory demand:

 

• If the debtor lives in one of the member

states of the European Union (apart from

Denmark), you will not be able to present

a bankruptcy petition against that person

if they carry on business or earn their

living in that EU country.

 

• If the person is retired or unemployed, the

court will look at the place where they

normally live. You have to make the

person bankrupt under the law of the

country where they normally work or live.

http://www.consumeractiongroup.co.uk/forum/showthread.php?255040-Declaring-Bankruptcy-In-The-UK-If-You-Now-Live-Abroad(1-Viewing)-nbsp

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They can't if the OP has been out of the UK for three years or more.

 

Ah ok. I overlooked there being any time limit. I think in the OP's case they should probably advise the debt company of their situation and that they have been resident in Spain for 10 years. At least then it might prevent them saying that they will enforce in ways that they cannot.


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Well considering they should be processing data according to ICO guidelines ergo they should know how long the OP has been out of the country. If they threaten action they cannot legally perform they will be in breach of OFT guidelines. ;)


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Can a statutory demand be sent to an EU address if the OP has been out of the country for more than 3 years? If making SO bankrupt in, say Spain, under the laws of the country wont a person have to commit an act of bankruptcy in Spain or does a default in England count. Any way, at the speed the Spanish legal system works it would be years before this got thru even if uncontested and I would be dead or in a home by then.Perhaps an offer in full and final settlement would be in order. In view of my parlous financial situation if they refuse I can use this in any defence.

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See pages 4 & 5

 

They would need to serve you with a SD & prove it had been served correctly; http://webarchive.nationalarchives.gov.uk/+/http://www.insolvency.gov.uk/pdfs/guidanceleafletspdf/statdemand.pdf

 

 

A statutory demand is not a document issued by the court. Leave to serve out of the jurisdiction is not therefore required. When a statutory demand is served outside the jurisdiction, the time limits for compliance (21 days) and for application to set aside (16 days) must be amended. This is done with reference to the Extra Jurisdiction Tables (Time for Acknowledgement of Service) in the Supreme Court Practice 1997, and the time is altered with reference to each particular country. [see Practice Direction (Bankruptcy: Service Abroad (No 1 of 1988 [1988] 1 WLR 461.]

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In the vast majority of cases it is just not economically viable for them to pursue bankruptcy an EPO or even a EEO unless the debt is fairly substantial usually in the many tens if not hundreds of thousands. A creditor is not going to invest time, energy and money in expensive cross-border legal fees when there is no certainty that they will ever get the money back.


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That´s what I thought. However, on a point of interest, having read the link, it seems that action for Bankruptcy has to be taken in the member country(all others inc Denmark having a limitation of 3 years). The question then is would a default in one country be recognised as such by another? Any way I read it as a statutory declaration cannot be made in UK but that the foreign courts proceedures must be followed (with whatever the equivalent of a SD is). The question is does anyone actually know if other EU courts

would recognise a foreign debt as grounds for Bankruptcy. I suppose one way they could do it would be to sell the debt to a Co in that country and take action from there, however I am sure that this would be easy to challenge.

Thanks for all the advice

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The UK bankruptcy laws are archaic and an application can be made for BR for a debt over £750 although this is being considered to be increased.

 

If a creditor was to apply for your BR in another EU state they would have to do so within the legislation of that country.

 

Have you sent MBNA a SAR to see exactly what charges they've added & was there any PPI? If so both can be reclaimed + statutory interest which could considerably reduce the alleged debt.

 

Also I seem to remember that there was some problem with MBNA being able to produce the CCAs from the A&L a/cs, if that's the case they would not be able to bring any action & you could defend any BR application on that basis.


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Who do I ask to produce the CAA, MBNA of the DRC? NB No PPI and Interest and charges were frozen almost immediatly 3 years ago.

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Send the CCA request which will cost £1 to whoever is chasing you for payment now. The SAR request goes to MBNA which will cost £10.

 

Personally I would just send the CCA first & see what that throws up.


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This is the letter you need to send. http://www.consumeractiongroup.co.uk/forum/content.php?414-CCA-request-letter.

 

If you can get hold of a £1 coin you could tape it to the letter, if not is there anyone in the UK who could send it on your behalf?


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