Backdoor Lowell/Carter CCJ - old HFC Card debt - set aside help

[focus594]

My friend was issued with a summons which he wished to defend

because he believes the DCA has no authority to pursue,

and this was going to be the mainstay of his defence.

 

He acknowledged service, asked for 14 extra days and sent SAR to DCA.

 

DCA claim debt has been assigned to them by OC.

 

 

DCA replied to SAR and stated that they couldn't provide breakdown of account, interest etc

or provide CCA because it was with original creditor,

and he would need to write to them.

 

He was late filing defence

 

 

when he went to do it there was an error at moneyclaim online.

 

 

They acknowledged error and said give it 24 hours then log back in.

 

 

Logged back in day after and it said judgement had been entered the previous evening.

 

He's applied to have judgement set aside on both grounds of error on website

and his belief that DCA dont have the authority to enforce judgement.

Set aside has been acknowledged and hearing is in two weeks.

 

What does he need to do now, if anything.

[dx100uk]

CCA request to the claimant

CPR to the sols

 

no good sending an sar to the DCA [claimant].

 

can you answer the following anyway:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**

 

and post up the defence please

 

 

[focus594]

The DCA claims to have had the debt assigned to them. That being the case they should hold all the details of the account as if they were the original creditor.

 

Of course, if they haven't had the debt absolutely assigned they have no authority to issue court proceedings, as far as I understand.

 

That's part of what I'm asking. Should the defence be sent in now, or should he wait until after the hearing for the Judgement to be set aside, then submit the defence?

 

Thanks

 

John

[dx100uk]

nope, all they get is a line on a spreadsheet and issue speculative court claims

hoping for an uncontested default judgement.

 

an sar ALWAYS goes to the OC.

 

you said he was late filing

so what defence did he file late?

 

 

dx

[AndyOrch]

My friend was issued with a summons which he wished to defend

because he believes the DCA has no authority to pursue,

and this was going to be the mainstay of his defence.

 

He acknowledged service, asked for 14 extra days and sent SAR to DCA.

 

DCA claim debt has been assigned to them by OC.

 

 

DCA replied to SAR and stated that they couldn't provide breakdown of account, interest etc

or provide CCA because it was with original creditor,

and he would need to write to them.

 

He was late filing defence

 

 

when he went to do it there was an error at moneyclaim online.

 

 

They acknowledged error and said give it 24 hours then log back in.

 

 

Logged back in day after and it said judgement had been entered the previous evening.

 

He's applied to have judgement set aside on both grounds of error on website

and his belief that DCA dont have the authority to enforce judgement.

Set aside has been acknowledged and hearing is in two weeks.

 

What does he need to do now, if anything.

 

How late is late focus?

 

Regards

 

Andy

[focus594]

The defence wasn't filed because it had already been entered into Judgement the previous evening, although it would have been that the dca was not the original creditor and therefore had no legal authority to issue a summons. The set aside application was done the next day.

 

He is going to request the various stuff from the solicitors and the CCA from the claimant as you've advised.

Should the defence also be included via a further witness statement to the court (previous witness statement attached) and copy sent to solicitor?

 

11 days late,

 

he'd forgotten about it until the reply to the SAR turned up.

 

Had there not been an error on the website his defence would have been in (albeit late)

 

judgement was entered on the 10th day and set aside application made 2 days later

and acknowledged by court 3 days after that.

Edited October 28, 2014 by focus594
addition

[focus594]

Update.

 

The set aside hearing has been heard and gone in the DCA favour.

 

From what my friend has said the Judge looked at two issues.

 

Issue 1

was the lateness of submitting the defence, and the Judge dismissed

it as he had ample time to get his defence in prior to the Judgement being issued.

This is accepted.

 

Issue 2

was in respect of whether it was legal for the DCA to bring a summons in the first place.

 

The DCA solicitors submitted their comments in writing and said for cost reasons they wouldn't be attending.

 

In the written comments they stated they had assignment and produced two letters,

one from the OR

and one from the DCA.

 

My mate tried to argue that although they had stated that they had assignment

he didn't believe they had absolute assignment.

 

In their written submission they stated they would not be providing proof of assignment as it contained commercially sensitive data.

 

The Judge said she could see there had been an assignment on evidence of the two letters produced by the DCA.

Also what did he mean by absolute assignment, which he struggled to explain.

 

The CPR request to the solicitors also fell on deaf ears, as they said they didn't need to provide any info as it wasn't a trial hearing.

 

So, the next stage, should he appeal?

 

I believe he should but how would he convince the court that the DCA doesn't have absolute assignment.

[dx100uk]

why oh why did he not question the lack of a SIGNED AGREEMENT.

 

 

the other two issues were always worthless

 

 

dx

[focus594]

That's the first time I've seen mention of a signed agreement?

 

Are you referring to the Original Credit Agreement?

 

A copy of this was requested from the DCA as part of the SAR and wasn't forthcoming,

they said he would have to obtain any documents from the original creditor.

 

This formed part of his comments on the set aside to the Judge, in which he said "

 

3. My major concern is whether [DCA] have absolute assignment over the debt.

Without it they are unable to issue a county court summons as they have not taken over full

rights and responsibilities of the debt.

 

4. On xx August 2014 I issued a Subject Access Request to [DCA] requesting full details of the

account, their reply was received on xx August 2014.

 

5. I believe this to be proved by their reply in which they state they are unable to provide

certain documents and I would need to get in touch with the original creditor to obtain them.

If they had absolute assignment all this information would be in their possession. (Exhibit

xx1 & xx2)

 

---------------------------------

 

A further request for a copy of the CCA was sent to the DCA on 29/10/14 following your advice.

 

Is it worth appealing dx, or not?

[dx100uk]

as post 2.

sending an sar to a dca is A WASTE OF TIME.

 

theres nothing useful in law if they don't send a CCA within the SAR

or even respond at all to an SAR at all.

 

the CCA request is something they MUST comply with within 12+2 working days

and must hold to win or enforce any claim, but the claim must be defended on this point

if they don't supply it.

 

its nothing at all to do with assignment or rights.

 

dunno what site you/he got the info for that defence but its a useless as a chocolate teapot.

 

if or if not you can now appeal this case is outside of my [limited] legal knowledge.

 

 

dx

[havinastella]

How much is this for?

[focus594]

About £300

[dx100uk]

is that all.

 

 

don't tell me lowells & carter

[focus594]

It wasn't from a site it was something that I composed for him.

That was only part of it but the last 2 points were from something I saw on here.

 

I have appended the other two points to the bottom of this post

if its any help but it would appear that I've approached it from the wrong angle.

 

I was under the impression that it was up to the DCA to prove absolute assignment which they haven't.

 

He's still waiting for the CCA from DCA but they still have another day or two yet.

I fear its of little value because there is no dispute there is a CCA, which I assume the original creditor will have.

 

Presumably a fresh set aside application would have to be made to defend it from a CCA pov?

 

----------------------------------------

 

6. The claimant has issued proceedings pursuant to the Law of Properties Act 1925.

 

For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment

must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced.

 

The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced.

 

Without this proof, the Claimant has no right of action.

 

7. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment

and that there must be an actual assignment in existence.

 

It is the actual Assignment, not just the Section 136 notice,

under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists.

 

It is further believed that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

--------------------------------------------------------------------

 

Yep, the original creditor was HFC Bank

[dx100uk]

god HFC

 

when from?

most HFC agreement hit the shredder years ago after the PPI debacle.

prob got PPI attached to it anyway that outweighs the balance?

 

why are you assuming the agreement will exist

when was the agreement taken out

not sure on your next move

that will be for the knowledgeable ones

 

 

dx

[havinastella]

My advise, pay the £300 before the 28 days are up and make sure you don't get the CCJ registered.

 

They start reclaiming everything from HFC.

 

You lost this relying on a minor technicality and not what mattered.

[AndyOrch]

Be aware that it would cost you nearly as much as the debt to set a side and fight this (unless you are exempt) good advice above from stella.

 

Regards

 

Andy

[focus594]

Sorry DX just noticed this reply when looking at a little used email account, clicked on it to find a second page!

 

August 2009,

 

Bryan Carter did send a summary of payments to him as part of the set aside submission,

which showed 7 payments made from Sept that year.

Then a default notice fee,

some further interest

then a transfer to balance fee,

whatever that is.

 

Ive got everything that BC and Lowell sent him scanned on my computer.

 

As far as I know the deadline for the CCJ register has passed.

It took 5 weeks before the set aside hearing.

Can he still claim anything back from HSBC/HFC?

If you can give me some advice on how to go about that he will be chuffed to bits.

 

I don't know the full history of why he stopped paying originally but I think it was something to do with a dispute with the retailer.

 

I don't think he took it up with HFC/HSBC though.