Court Directions and Default Notice - AK & old EGG debt

[elrib]

Hi all

 

In court next week for SD would like some advise.

 

SD Arrived, so got forms for set aside sent them to court, defending on the grounds that the debt is in dispute, and my CCA request was not for fulfilled, ie all thought a agreement was sent it did not conform as name not correct and prescribe terms incorrect and missing. I also sent for a SAR which was never answered. So may also be chargers on account and PPI.

Had letter back from court saying that the district Judge has not dismissed my application on the first consideration and I will now have to appear in court and a date for next week has been given.

Not been down this route so looking for some advice on how to proceed and best way to defend.

Thank E.

[raydetinu]

Take all documentation and correspondance you have on the dispute, with copies for the court and claimant.

requests for SAR etc.

inaccuarcies or missing info on CCA are generally not grounds for non-validity any more.

[Guest]

any disputes, including cca, prior to the sd could be useful.

Edited December 30, 2012 by Ford

[Northernpug]

How much is the SD for? Do you have a lot of equity in your house? If the chances are that there won't be a lot left after the mortgage, any other debts and fees have been paid if you were declared bankrupt, the claimants may have second thoughts about taking it any further.

 

If you do have a lot of equity it may be worth talking to Step Change. They were the only organisation I spoke to who seemed to know what they were talking about when it came to bankruptcy matters. If your defence faulters you could use what Step Change tell you to negotiate a deal to stop it going any further.

[elrib]

Thanks

 

SD is for 7K.

Do I take it now, that the prescribe terms do not have to be in the agreement.

[raydetinu]

judge will decide what they will accept, however recently they have been on the side of the lender about missing items even signatures missing; they seem to accept that the implied terms are there and the reference to CCA is enough to make it legal, but as usual it varies case by case.

[Northernpug]

Did you do the CCA and SAR request before receiving the SD? If it was after the SD was received I believe it weakens your position as the account was not in dispute before the SD was served. If there is reclaimable PPI and charges, they would have to at least equal the amount being claimed (or bring the amount due to below £750) to be of any use. If using non receipt of the SAR as a reason to dispute, the case may get adjourned to give time for the SAR to be replied to even if it is over the 40 days.

 

If the CCA was before 2007 then a true copy of the original signed agreement with all the PTs etc should be produced but if after 2007 then it can be a reconstructed copy. It depends on the judge on the day if he will accept a non enforceable CCA as a valid reason to dispute the claim but as mentioned previously, it would have needed to be disputed before the SD was served.

 

As your SAR hasn't been responded to, did you mention in your defence anything about not receiving a Default Notice or letter of assignment?

 

I'm in a similar situation but defending a petition. Relying on an unenforceable CCA on its own seems to be a bit of a gamble. Thats why I mentioned contacting Step Change. If you can prove that you are actively doing something to resolve the situation with the help of someone like Step Change, then it may help your position if the defence fails.

[elrib]

Thanks raydetinu

 

May be blowing in the wind, but if there is no prescribe term for purchase in the agreement or in the TC and they charge interest on purchase would that be seen as a unlawfull charge,

[elrib]

Cca and sar done before SD and before Debt was sold on, new owners made aware of this prior to SD.

 

The cca is before 2007. ie 2000.

I meantion in my defenence that I had not received anything from the SAR and have prove of sending including letter from post office confirming the postal order being cashed.

[raydetinu]

All looks a bit wooly, so you may have a good chance. (disputed debt ). It will be up to the new owners of the debt to prove it is valid and if you put enough doubt in the judges mind that it is not the case he may well set aside and they will have start again.

submit evidence in a logical time line way of what you disputed and why with any responses or lack off, that you received.

[42man]

Any chance the debt may be statute barred also ? Is this Lowells ? BWLegal

[elrib]

hi 42man

 

this is a old egg agreement, I have read the slater and egg judgement but could not make much sense of the out come with regards to PTs, On my agreement it does not have anything for purchases, where on the slater one it did, and I think reading it that otherwise does not mean purchases, just wondering weather you or anyone could put any light on this.

 

Thanks E.

[42man]

I'm nervy about unenforceability of agreements as it seems judges do vary, but if you take a look at recent cases such as Kotecha vs Phoenix, Harrison vs Link, checking prescribed terms etc then you may come up with something, keep digging if you can....if you aren't sure then you would have to look for a specialist solicitor who is used to dealing with these types of cases.

[raydetinu]

Is the debt valid. i.e do you actually owe it and are you just disputing its valididty on technical terms about the agreement?

[elrib]

Yes I do owe some of the debt but never received statements to check ppi or chargers, also I am looking at terms on the agreement which may not be on there. so hoping to bring that to judge attention.

[Guest]

ok, so that is partly re the cca request, and sar?, done before the sd. and request yet to be accurately satisfied (kotecha)? poss counterclaim? should hopefully hold some weight re set aside?

Edited January 6, 2013 by Ford

[FitForPurpose]

I successfully defended against a bankruptcy action as a litigant in person. If you are also defending yourself, you should take some encouragement that the court has a duty of care to you to ensure there isn't any imbalance caused by your lack of legal knowledge against a party that might have significant legal resources. In my case, which went to a full hearing, the registrar took my witness statement and effectively argued my points on my behalf against the opposing solicitor, quoting relevant laws and clauses. The opposing solicitor was annihilated

 

If you believe you are right, stick to your guns and justice will, as they say, prevail.

 

Best of luck

 

FFP

[elrib]

Hi All

 

Had my day in court well 30 minutes anyway, Set Aside allowed, DCA not happy bunny's.

 

Again thanks for input and the valuable information on this forum.

 

Elrib.

[Old Cogger]

State-backed bank RBS has been ordered by the Office of Fair Trading (OFT) to stop using controversial "charging orders" to collect small debts.

It is concerned about the "oppressive" use of these legal orders, which can allow a lender to make a claim against a borrower's home even if the debt was taken out on a credit card or loan.

The regulator has imposed restrictions on the way Royal Bank of Scotland and NatWest, both members of the RBS Group, are enforcing debts on their customers.

A bank can apply to a court for such an order if a borrower fails to keep up with their payments on unsecured debts such as a credit card, a personal loan or hire purchase commitments.

The charging order secures the debt against your home or other property you own and means you could lose your home if you don't pay back what you owe, although a further application to the court would need to be made to do this.

[Old Cogger]

PART TWO: -

 

The OFT said that it has concerns about RBS and Natwest's failure to consider customers' financial circumstances before asking the court to put a charging order in place.

In some cases the banks were using charging orders to secure disproportionately small debts as low as £5,000.

David Fisher, OFT director of consumer credit, said: "Lenders are entitled to use charging orders but they must do so proportionately and not to secure relatively small amounts of debt.

"Where we consider the use of charging orders to be unfair or oppressive we will take action to protect consumers."

An investigation by the regulator in 2008 revealed four banks had told customers to pledge their homes against non-mortgage debt. This advice led to customers unwittingly putting their homes at risk of repossession.

Lenders also increasingly turned to charging orders as a more effective way of reclaiming debt as defaults grew. More than 111,311 orders were served in 2009, up from around 49,000 in 2005. In 2010, an OFT investigation found a charging order was made for a little as £600. A handful of lenders were censured, including Alliance & Leicester, American Express, HFC Bank (part of HSBC) and Welcome Financial Services (part of Cattles).

A spokesman for RBD Group said: "We are committed to helping customers who find themselves in financial difficulty. We changed the thresholds for using charging orders ourselves in 2008. The cases reviewed by the OFT preceded these changes. We use charging orders only as a last resort."

[Guest]

nice one mike

http://www.oft.gov.uk/news-and-updates/press/2013/03-13

Edited January 12, 2013 by Ford

[42man]

Well done Elrib....what did the judge say ? did the other side turn up in court ? did you get your costs ?

[Guest]

missed that! well done, what happened in court?

[elrib]

thanks guys.

 

They did turn up with a solicitor. I must say it was not the most comfortable suitation to be in as a layman in court, But I put my case forward and it seem that the solicitor was not up to scratch with the CCA reg, and kept wanting to refer to his mobile which did,t please the judge.

Anyway the Judge decided that things did,t look right with the agreement and the evidence from the solicitor was very poor.

He said I presented my case well ( thanks mainly to you guys and this forum) and that also reflects in his decision to set-aside the application, with costs.

Solicitor not to pleased so guess they will be back with vengeance.

again thanks all.

E,

[elrib]

Hi All

 

just got court papers from Bulk centre ref debt that I went to court with ie (statuary demand ) which was set aside in my favour. POC are the same as before and no new documentation. any advise would be appreciated on how to defend.

E