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    • yes you can: https://www.gov.uk/universal-credit/other-financial-support
    • thats the point of a LBL!!…. they DONT need any court approvement to enforce it..   as long as the bill of sale has been correctly registered  there is quite frankly stuff and all you can do to prevent losing your car. http://www.consumeractiongroup.co.uk/forum/showthread.php?452164-Log-Book-Loan-Guidance&p=4791345#post4791345 from my notes. [prob same as above! >>>>>>>>>>>>>>>>>> logbook loan repossessions are not always legal,  . if linked to a CCA agreement or if the BOS has not been registered with the high court. . If BOS registered then yes they can reposses,  but have to show registration and debt details. Registration  A bill of sale can only be enforced if it was properly registered.  Since this is an expensive and difficult process,  it is rare that this actually happens.  However, failure to register the bill of sale renders it void,  and so renders any security on goods void. .  Consequently, before allowing any creditor to gain possession of your goods,  ask to see a registered copy of the bill showing the supreme courts seal. .  You can also call the national debt line, and ask them how to search the registry yourself. .  Also a valid DN must be issued. . If linked to a CCA then can not reposses if on private property without a court order  ( but can if on public road and under a third has only been paid ). . Over a third, they need a court order wherever it is. . check for...[BOS] . Not Registered With The High Court In 7 Days not registered AT ALL!  . Credit Agreement Details Not On The Bill Of Sale You should also check that the name on the registration documents  matches the name of the person who signed the BOS On occasions these cars get sold on several times . how to check: . email:QBEnforcement@hmcts.gsi.g ov.uk.[no spaces] . ring:020 7947 7772  . write: QB Enforcement Section,  Room E15-E17,  Royal Courts of Justice,  Strand, London, WC2A ... . ideally you need the BOS number . however they can search by the Reg Number . ...............  also see: http://www.fca.org.uk/firms/firm-types/consumer-credit/consumer-credit-research/logbook-loans ..... Do you have a problem with a Logbook Loan?  With Citizens advice estimating that over 60,000 of these loans were taken out in 2014 alone  an increasing number a causing severe difficulty and distress for borrowers. .  In this guide we explain what a logbook loan is, and how they work.   What you can do if you have a repayment problem,  and what you can do if you have unknowingly bought a car with a logbook loan attached. .  Three golden rules for Logbbok Loans .  1)No matter how desperate you are to purchase a car, or raise cash,  NEVER consider this type of Finance  These loans are designed purely for the benefit of the lenders.  With APRs of 400+%, little consumer protection, and aggressive debt collectionicon practices  they should be avoided at all costs. .  2)When purchasing a used car from whatever source,private or trade,  ALWAYS do a FULL GENUINE HPI CHECK costing around £20,  these come with a guarantee against any form of existing finance, including lbl's .  3)If you have any problem with a Logbook Loan,  your first step is ALWAYS to check that the Bill Of Sale has been registered  with the High Court. You can do this here- .  to check if registered .  Contact Details .  QB Enforcement Section  Room E15-17  Royal Courts of Justice  Strand  London  WC2A 2LL  DX 44450 Strand .  Telephone: 020 7947 7772  Fax: 0870 324 0024  Email: QBEnforcement@hmcts.gsi.g ov.uk .  You may read on the internet that your BOSicon will be void if witnessed by your lbl lender .  Since the OFT( as was) lost the attestation case on appeal by 2 to1 this is NOT the case .  full details here http://www.bailii.org/cgi-bin/markup...method=boolean .  Logbook loans are a form of credit dating back to the Victorian era,  derived from the 1878/1882 Bills Of Sale Acts, with terms and conditions to match in many cases. .  Problems are many fold from extortionate charges by lenders for calling a customer,  to repossessions where owners have been left at the side of a busy road,  unable to get to work, and even sexual harassment via debt collection. .  Poor practices abound, unsurprising when there is no incentive for lenders  to ensure their customers understand the terms or can afford the repayments.  In fact the very nature of this form of finance could be seen to encourage bad behaviour  – why carry out affordability checks if a single missed payments means you get to keep   the money and takeaway the car? . .  How does it work? .  When you take out a logbook loan you will be asked to hand over your vehicle’s logbook  or vehicle registration document, which proves you are the registered keeper of the vehicle. .  You’ll also have to sign a credit agreement and a form called a ‘bill of sale’.  This means the lender now owns your vehicle on a temporary basis  but you are still able to use it so long as you meet all loan repayments.  . These documents are recognised by law in England, Wales and Northern Ireland  but are not used in Scotland. .  The law only recognises a bill of sale if the lender registers it with the High Court.  If it’s not registered, the lender must get a court’s approval to repossess your vehicle.  . You should check if the bill of sale is registered. .  What you should do if you have a repayment problem .  1) check your Bill Of Sale is registered as above .  2) the lender must send you a default notice which complies with the requirements of s87(1)cca1974 .  allowing you fourteen clear days to remedy any default (which can be after one missed payment) .  You should , if your lender will not negotiate a reduced payment, straight away on receipt of the dn .  look to take out a time order. This gains you the protection of the court, which can look into the overall loan-- https://www.nationaldebtline.org/EW/...t/Default.aspx .  What you can do if you have purchased a car with an existing logbook loan .  If you receive a letter threatening to repossess the car or an enforcement officer  turns up at your home to take it, you may not be able to stop them.  . •ask to see proof of their identity and their authorisation to take the car •ask to see the bill of sale document – they have to show you this if you ask for it •if you feel threatened by how an enforcement officer is behaving, call the polic •ask for written confirmation of what has been taken •get the contact details for the logbook loan company. . If the lender has taken your car, you can try to get it back  and reclaim your money from the seller.  However, this can be a costly and time-consuming process and is not guaranteed to succeed. .  If you want to get the car back, you could pay off the outstanding loan  and then take the person who sold you the car to court, to try to get your money back.  .  If you just want to get your money back, you can take the person who sold you the car to court.   Always get independent advice before you decide to take someone to court. .  Some lenders are members of the consumer credit Trade Association (CCTA),  which has a code of practice covering logbook loans.  The code of practice says the lender must register the logbook loan on a register,  so it will show up when you carry out a history check on the car.  It also says they must obey certain rules when they repossess a car. .  If you are unhappy with the way a logbook loan lender or its enforcement officers have behaved,  find out whether they are a member. If so, you can complain directly to the CCTA. However this code is regularly ignored . http://www.ccta.co.uk/content/our-code.aspx .  Finally both the Financial Conduct Authority and the Law Commission are investigating  Logbook Lending  and the associated legislation,  full details here-- . http://www.fca.org.uk/firms/firm-typ.../logbook-loans . http://lawcommission.justice.gov.uk/...ls-of-sale.htm . for anyones info, you must act immediately on receipt of a default notice . What you should do if you have a repayment problem .  1) check your Bill Of Sale is registered as above .  2) the lender must send you a default notice which complies with the requirements of s87(1)cca1974  allowing you fourteen clear days to remedy any default (which can be after one missed payment) .  You should , if your lender will not negotiate a reduced payment, straight away on receipt of the default notice look to take out a time order. This gains you the protection of the court, which can look into the overall loan-- . https://www.nationaldebtline.org/EW/...t/Default.aspx Bills of Sale Act does not apply in Scotland, just to reassure you from the Money Advice Service *Taking out a logbook loan in Scotland*   In Scotland, ‘bills of sale’ cannot be used as security and are not legally binding.   Lenders in Scotland are therefore likely to be operating under different credit arrangements.   If the logbook loan is a ‘hire-purchase agreement’ or a ‘conditional  sale’, your consumer rights and protection under the Consumer Credit Act  1974 will apply. . worth a read http://www.consumeractiongroup.co.uk/forum/showthread.php?472038-ACF-THe-funding-Corp-illegal-repo-now-DCA-Chasing-loan&p=4972172#post4972172 . dx  
    • Can someone please help. I received a money claim and the trial is coming very soon. The claimants are the landlord, sent out a late payment warning letter in 2016, no warning letter has been received since.  I received a money claim against me in December 2018 without a letter before action.  The claimant is claiming breach of contract and they have submitted an agreement with their claim form that I think is invalid because it was created in 2015. We have a newer agreement that was signed in 2016 but the claimants have always denied this.  Today on their witness statement, they have attached this agreement date 2016. Would this make the 1st agreement invalid and would this be enough to get the claim thrown out of court? Any help would be greatly appreciated. Thank you! 
    • Oh dear - Report it as stolen - You better give it to them or else... However if you can tell - I am being sarcastic...    So - Affordability is a prime concern but with LBL - Because they are secured - It is very hard to do a IRR Lending complaint unless they seriously overvalued the car.  What are the amounts they are talking to you about? (Figures)   I dont think there is much they can do apart from enforce through court proceedings for repossession. Thats the only way I think but dont quote me on that...  If there treatment of you has been detrimental and caused sever mental health issues then you can complain to the FOS and also you will be afforded time to come up with a repayment plan.    Where is the Vehicle stored at the moment?
    • I've received a cheque from CS for the loan PPI - £2,238.72. Banked and will give a CAG donation once it clears. Thanks guys.    Also received a reply to the Credit Card PPI that I had queried. 8 weeks since my letter and they have written that due to the high volume of complaints it's taking longer than expected to respond. They expect another 8 weeks to respond of close the complaint. 
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Poppay2

Cabot/weightmans claimform - following SD set aside in 2013 - halifax Aqua Card ***Claim Discontinued***

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just found another letter from same dca dated day after and it says...

'Thank you for your recently received letter, requesting a copy of your credit agreement pursuant to the Consumer Credit Act 1974.

 

Please note that certain accounts are excluded from compliance with Part V of the Consumer Credit Act or are not in fact credit or hire agreements and we believe that our client's account falls into one of these categories.'

 

Then it asks me to pay immediately..

 

I haven’t a clue what they are going on about here. The Aqua card was a credit card (credit token), not a charge card, so I’m pretty sure that s77/78 applies.

 

Anyone else have any ideas on this?


“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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What a bunch of idiots, any credit card accounts is subject to the full CCA 1974 regulation.


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If it was me in your situation then I would be emailing/sending (recorded delivery) them this...

 

Dear Sirs / Madam

 

I am in receipt of your statutory demand which came into my hands on (date)

 

Although I will not attempt to get into litigation via the postal service, I will be setting this demand aside at my local court as this debt has been in dispute since (date), I will also be claiming my costs in the process,

 

I am sure that I have no need to remind you that Office Of Fair Trading make it quite clear in Section 3.7 (f)

 

f.-failing to ensure that an accurate and adequate history of the

debt is passed between parties, as appropriate and necessary

 

I am also sure that I have no need to remind you of the finer details of The Consumer Protection From Unfair Trading Regulations 2008 and your own associations 'Code Of Conduct'

 

If I do not have a response stating that you will NOT be proceeding with a petition and that you are withdrawing the demand within 7 days (maximum), then when the issue of costs arises I will be producing both this correspondence and previous correspondence to the judge.

 

I will also be informing the Office Of Fair Trading of your clear breach of the OFT's guidelines, and your unlawful use of the statutory demand.

 

I trust this makes my position completely clear

 

Yours faithfully

 

If you hear nothing within 7 days then give me a shout and we can form a good set aside for you....


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

 

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Hi All,

thanks for all your info, really bolstering me :Thanks 42Man, I will send that letter tonight, via Waitrose Post office.

Doing it now....

Poppay

 

The SAR sent to Aqua, and letter 42man kindly suggested I sent has been sent.

I guess we wait to see what happens in the next 7 days.

thanks again everyone, much appreciated and huge help :) Have good rest of weekend :)

Poppay:)

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no bother

 

keep us informed

 

dx


PLEASE DONT HIT QUOTE IF THE LAST POST IS THE ONE YOU ARE REPLYING TOO.

MAKES A THREAD TWICE AS LONG TO SCROLL THROUGH!

please do not post jpg images directly to a topic..USE PDF ....READ UPLOAD.

 

WE CAN'T GIVE ADVICE BY PM - IF YOU SEND ME A LINK TO YOUR THREAD - I WILL BE HAPPY TO OFFER HELP THERE

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Hi 42man

 

Well, gave it a full 7 days and absolutely nothing from Cbot. I'm not really surprised.

 

I guess the next step is to write that set aside?

 

Poppay2

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In which case you need to apply to set aside, remember your 6.4 and 6.5 need to be in the courts within 18 days of your receiving the demand. Please have a look here as it gives clear instructions, -

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?379550-Help-!!!!!-I-have-been-served-a-statutory-demand&highlight=bwlegal

 

and this one too - http://www.consumeractiongroup.co.uk/forum/showthread.php?381778-LOwell-Statutory-Demand-old-Egg-debt&highlight=bwlegal

 

If you aren't sure what to do then please shout....


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.

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Just to clarify that I have 18 days from the date of the SD being received by me?

filling out the forms I suddenly had an awful thought when I saw the date on the SD, which is 27 Mrch.

for a second I thought it was from the date on the SD, having daft few mins, because the first letter I found was sent the day after that day. which was notifying me of the intention to serve the SD.

Thinking about though there was always the intention to serve it else would it have been set up prior to notifying the 'debtor', I guess it could well have been .....

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You need to take it in to your local court, one of the links I gave above gave instructions on filling out the 6.4, the 6.5 is your reasons to set aside. I think in amongst your 6.5 you should mention the fact that you wrote to them outlining that the alleged debt is in dispute and that they have failed to respond. If you need help with the 6.5 then do shout....there are some very relevant points in this defence here (this is a petition defence but still useable for a stat demand, there are of course some points in this that aren't relevant to your own case (statute barred for example). - http://www.consumeractiongroup.co.uk/forum/showthread.php?388479-Bankruptcy-Petition-and-BWLegal-HELP&highlight=bwlegal


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

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going over 6.5 form and reasons for set aside are:

 

1. Do not admit the debt (advised by dca no CCA available) This was when they were collecting on behalf of the original creditor

1.1 Amount in dispute (more than 1 dca asking for different amounts) do I state these reasons or just that the amount is in dispute.

6. Counter claim (Letter sent to cbot said that I would be claiming fees, do I also state that I am making a counterclaim? not sure what I am claiming for?) I cannot see any mention of PPI on statements that I have looked at.

8. Say that....... Creditor failed to comply with rules and prejudiced the debtor. (do i need to go into detail?)

Those appear to be the most logical reasons that come to mind.

 

I can submit these forms tomorrow at the local courts which are a mere walk up the road from where I live.

I have created a time line for the dca letters and the last letter from a dca is shows an amount that is less than half of that from another dca in January this year.

Is there anything else I need to look for?

Poppay2

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Forget about counterclaiming, unless you have a county court claim in submission then you will complicate things. Yes you do state it has been in dispute since (date) you need to attach any previous paperwork and make reference to it in the 6.5

 

Read the links above and you can see the style it is written in with references to high court cases (which a lower court should abide by). You just need to try and understand it.

 

Non compliance with the CCA is a reason on it's own - which is confirmed in this High Court Case

 

The claimant refers to the authority of Jones vs Link Financial - [2012] EWHC 2402 (QB)

"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. "

 

"I agree with Professor Guest that this would apply to the statutory duties under ss.77, 78 (duty to give information to the debtor), ss.76, 87, 98 (duty to serve enforcement, default and termination notices), s.97 (duty to supply settlement figure), s.103 (duty to provide termination statement)"

 

"In my judgment the "duties" referred to in section 189 are therefore those statutory duties under the 1974 Act which the assignee has to perform in order to enforce his assigned rights. These duties have "passed by assignment" in the sense that it is by reason of the assignment that the assignee becomes obliged to fulfil them"

 

Don't forget things like, does the agreement comply, PPI, default notice being compliant, does the interest rate tally up with what is written in the agreement ? penalty charges ?

 

You need to be prepared to fight your corner and not be steamrollered, and of course it can sometimes depend on you getting a decent judge as some judges can vary wildly....just try and know your stuff


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

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read a bit more and realised that I may have to write a letter to accompany the forms.

I had a DN letter from original creditor but nothing from cbot, should i state that no DN from cbot?

As I am not sure at PPI should I also include that ?

I copied the sections below from thread 42man provided, from what I can tell it most of it applies to my situation.

I believe I should include the letters referring to no CCA with the letter?

do i supply copies of the dca letters or would a timeline suffice?

I have also noted the costs that can be claimed do I detail these or would that come later?

Have copied the below to incorporate in letter

The defendant is disputing the alleged account

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act 1974 see attachment 1 (attachment 1will be your CCA request along with your proof of postage)

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

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;

 

The claimant refers to the authority of Jones vs Link Financial - [2012] EWHC 2402 (QB)

 

"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. "

 

"I agree with Professor Guest that this would apply to the statutory duties under ss.77, 78 (duty to give information to the debtor), ss.76, 87, 98 (duty to serve enforcement, default and termination notices), s.97 (duty to supply settlement figure), s.103 (duty to provide termination statement)"

 

"In my judgment the "duties" referred to in section 189 are therefore those statutory duties under the 1974 Act which the assignee has to perform in order to enforce his assigned rights. These duties have "passed by assignment" in the sense that it is by reason of the assignment that the assignee becomes obliged to fulfil them"

 

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.

 

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

 

  1. 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 interest[.’

 

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 claimant has failed to provide any copies of any valid default notices as required under the Consumer Credit Act.

 

The claimant has failed to provide any deeds or notices of assignment.

 

The claimant has failed to provide any statements for the duration of the agreement (as in Phoenix vs Kotecha)

 

The defendant also refers to

 

PHOENIX RECOVERIES (UK) LTD SARL v DEVENDRA KOTECHA (2011)

 

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Patten LJ) 26/1/2011

A creditor had failed to satisfy a debtor's request under the Consumer Credit Act 1974 s.78(1) for a copy of a credit card agreement as it had not, on the evidence, included the original, actual terms and conditions in respect of interest rates then in force. The creditor was, accordingly, not entitled to proceed to enforce the debt under s.78(6).

 

"Interest rates were a term of central importance in credit card agreements. There was a strong case that the interest charges which would have been specified in the terms and conditions when B and K made the agreement in 1998 were those in the leaflet and not those which appeared in P's evidence. Under s.78(1), a creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made. In those circumstances, P had not proved that that obligation was satisfied, and it was therefore not entitled to progress to enforce the debt against K under s.78(6)."

 

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 provided

 

  • 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 claimant has failed to provide any details of any potentially missoldC:\Users\B\AppData\Local\Temp\msohtml1\01\clip_image001.gif insurance that may have been added to the agreement.

 

The defendant avers that some debts are made up entirely of charges and / or potentially missold personal protection insurance.

 

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 also wishes to make known the statutes in the Consumer Protection From Unfair TradingC:\Users\B\AppData\Local\Temp\msohtml1\01\clip_image001.gif Regulations 2008, and believes that the alleged creditor is in multiple breach of statute

 

Offences relating to unfair commercial practices. A trader is guilty of an offence if he engages in a commercial practice which is a misleading action under regulation 5 otherwise than by reason of the commercial practice satisfying the condition in regulation 5(3)(b).

 

Which clearly state...

 

Misleading actions

 

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(3) A commercial practice satisfies the conditions of this paragraph if—

(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

(i)the trader indicates in a commercial practice that he is bound by that code of conduct,

 

Interpretation.—(1) In these Regulations—“average consumer” shall be construed in accordance with paragraphs (2) to (6);“business” includes a trade, craft or profession;“code of conduct” means an agreement or set of rules (which is not imposed by legal or administrative requirements), which defines the behaviour of traders who undertake to be bound by it in relation to one or more commercial practices or business sectors;“code owner” means a trader or a body responsible for—(a)the formulation and revision of a code of conduct; or(b)monitoring compliance with the code by those who have undertaken to be bound by it;

 

“trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trade

 

The defendant refers to the Code Of Conduct stated by the Credit Service Association of which Lowells are a member -

The code of conduct clearly states

 

Every member shall:

a conduct its business in compliance with all relevant legislation,

regulations, regulatory guidance and requirements and this Code of

Practice

 

v when an account is reasonably disputed or a complaint is received,

suspend collection activity and investigate and where applicable

refer the matter to their client

 

aa treat debtors fairly and not subject debtors (or their authorised

representatives) to aggressive practices, or conduct which is

deceitful, oppressive, unfair or improper, whether lawful or not

a) Conduct its business lawfully, comply with

all relevant UK legislation, regulation

and judicial decisions and trade fairly and

responsibly.

 

 

Office Of Fair Trading

 

3 UNFAIR OR IMPROPER BUSINESS PRACTICES

 

e. When seeking to recover a debt, failing to take appropriate steps with a view to ensuring that available data/information to inform the pursuit and recovery of a debt is accurate and adequate, such that the debtor and the (amount of the) debt can be correctly identified from that data/information

 

• a person being pursued for an incorrect amount.

 

f. failing to ensure that an accurate and adequate history of the debt is passed between parties, as appropriate and necessary

 

n. making undue, excessive or otherwise inappropriate use of statutory demands when pursuing arrears or debts

Comply with this Code of Practice and

follow any guidance notes issued by the

Board of the AssociationPublished by the Office of Fair Trading

In light of the above evidence, the defendant gracefully requests the Judge dismisses the demand and orders the claimant to pay my full costs + compensation (either in the standard or in the indemnity) in light of the distress and upset this has caused myself and my family.

 

In support of this I quote –

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collectionwhere there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner). Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

I believe the facts herewith in this form are true.

Poppay2

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Was the default notice compliant ?

 

And yes attach copies of any previous letters you have sent in the past to show this dispute.

 

By all means add the PPI aspect too if you don't know.

 

Leave your costs for the moment, you can submit those once you know you have a hearing, the costs don't have to be in the file until at least 24 hours before the hearing...


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I cannot locate the letter I sent regarding the cca, my hard drive crashed and I couldnt access any of the data on it.

I can attach the letters that answered the CCA request from a dca and they were acting on behalf of the original creditor and not cbot although cbotdid employ other dca prior to taking on the debt. which is a bit confusing.

The Default NOtice was from original creditor in 2011, I think it is compliant how do I check?

 

looking at the default notice, it gives credit limit amount, then outstanding balance.

It does not give any other info except that £xxx.xx over the credit limit.

Does not say whether or not charges, PPI are included in the outstanding amount.

Does not say what the percentage is.

Copy of the pre-contract information, states that APR is 15.9% per annum but statements are 39.9%.

I think this pre-contract agreement is for the Aqua card, but the address on this info is MBNA Europe Bank Ltd, STansfield House, Chester Business Park, Chester.

I dont appear to have any other agreement info.

 

just found letter from aqua informing account was closed dated 5 nov 2010, wording states that a default notice was sent recently, however, the date on the default notice is 22nd Nov 2010.

Is this relevant?

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Seems to be ok.

The date on the DN maybe the date by which the default should have been remedied.


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also found another letter stating account closed in September 2010, then another dated 6 December, that is the only one after the default not

Also found details of agreement changes, these were not the original agreement terms and the later ones do detail APR at 39.9%, but that is at least a year or so after issue of card.

 

i have just realised that the CCA request was sent to dca Albion but dca Moorcroft replied, are they one and the same?

 

so, if the default notice is ok, I can exclude it from the letter?

Should cbot have sent statements to me once they took over the debt? I havent received any statements from anyone for at least two years.

the only statements I've received were from the original creditor.

The sum requested has differed between dca's that I have received letters from in the same month and year.

 

Just looked at someone else's statutory demand.

Mine does not give any details about defaulting.

Just that the debt was was assigned to cbot on 25 July 2011. This was after the CCA request was sent and after I received the reply from Moorcraft.

cbot are also asking for 8% per annum interest and want me to pay the debt or secure or compound for it to the creditor's satisfaction (not sure what this means).

 

Hi All

going to upload the two replies from dca regarding the CCA request, it will just be the body of the letter without any other pid details.

 

This is the first reply to my CCA request from M,,rcraft. Jan 2011 - their client was Aqua

 

http://i481.photobucket.com/albums/rr175/Dataxxl/AQUA%20CABOT/1streplytoCCArequest.jpg

 

http://i481.photobucket.com/albums/rr175/Dataxxl/AQUA%20CABOT/2NDREPLYTOCCAREQUEst.jpg

 

Didnt think the images had uploaded big enough to read so loaded them onto Photobucket.

 

Will post up the outline of what I am in putting in form 6.5 just putting it together.

Hope someone is able to let me know if it is ok.

Poppay

 

 

Its the 11th hour and I now have ANOTHER letter from a different DCA, and this amount is the lowest of them all!!!

Anyone know what is going on?

 

Noticed that this letter states that their client is Cbot Fin (Europe) etc etc.... and the SD was from the (UK) lot, isnt it essentially the same company?

 

Perhaps this is the result of the letter I sent to cbot two weeks ago about how they were abusing the legal process etc etc.

 

Maybe they think this letter with the lowest amount ever, will stop me in my tracks, no way, gone too far been up most of the night putting papers together, will face my demons.

 

Does anyone think it is a good idea to add this latest letter to the papers with the 6.5?

 

Apologies if I seem to be all over the place, have a sleep disorder and having just gone through several days of not being able to stay awake am still trying to get my head together.

laters

Poppay

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actually, now you ask, i dont think it is the same debt.

I have no idea what this one is for, it only gives a reference number, thanks for asking as I was just assuming it was the same debt, bit all over the place today.

 

I wouldnt be surprised if another SD is on its way.

 

no, IT IS THE SAME DEBT!!

 

Just found the same reference number on another dca letter dated sept 2012, this letter from scotcall has the same reference number as the one that arrived today.

 

The new letter is from a dca called 'CLARITY' in Northampton

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OMG!!!!!!

Its the 11th hour and I now have ANOTHER letter from a different DCA, and this amount is the lowest of them all!!!

Anyone know what is going on?

 

Noticed that this letter states that their client is Cbot Fin (Europe) etc etc.... and the SD was from the (UK) lot, isnt it essentially the same company?

 

Perhaps this is the result of the letter I sent to cbot two weeks ago about how they were abusing the legal process etc etc.

 

Maybe they think this letter with the lowest amount ever, will stop me in my tracks, no way, gone too far been up most of the night putting papers together, will face my demons.

 

Does anyone think it is a good idea to add this latest letter to the papers with the 6.5?

 

Apologies if I seem to be all over the place, have a sleep disorder and having just gone through several days of not being able to stay awake am still trying to get my head together.

laters

Poppay

 

Which one is on it this time??


Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

Please Consider making a donation to keep this site running!

Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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Hi brigadier

are you referring to which dca? its one called Clarity from Northampton, on behalf of cbot europe.

Never heard from these before but they say they have written, probably a standard letter.

 

should I attach it to the 6.5 with the other 25 attachments?

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So what are clarity actually stating, can we see a copy please.


Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

Please Consider making a donation to keep this site running!

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ok, just trying to scan it in, never used the scan option on this printer before,

 

gave up on the scanner, its one issued to me for my working from home job.

took a photo instead

if it doesnt work by uploading here will also use photobucket.

 

 

http://i481.photobucket.com/albums/rr175/Dataxxl/AQUA%20CABOT/claritydca.png

 

latest DCA letter Clarity

 

http://i481.photobucket.com/albums/rr175/Dataxxl/AQUA%20CABOT/claritydca.png

 

ok managed to upload the photo, its just the body of the letter, sounds pretty standard to me, more veiled threats if you see what I mean?.

not sure if you can see the heading but that says

HELP US TO STOP FURTHER ACTION NOW

 

but once again that is a pretty standard heading.

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Worth including, as it is evidence that (a) they are contravening OFT guidelines by having more than one outfit chasing you; (b) it is proof that they don’t know what they are doing; and © it is firm evidence that they continue to abuse the insolvency laws by referring to also using the county courts!

 

Also add this in to your OFT complaint.


“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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thanks Donkey B

Will amend my form now and reprint it.

Then I'll be off up the road :)

Laters

Poppay

 

This is how form 6.5 now reads have added the letter received to day to the bundle.

(1). The Defendant disputes the debt.

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act 1974 see attachments 2 and 3.

(8).The Claimant failed to comply with the rules and prejudiced the debtor in the process.

The claimant has failed to provide any details of any potentially missold insurance that may have been added to the agreement.

The defendant avers that some debts are made up entirely of charges and / or potentially missold personal protection insurance.

 

The claimant has failed to provide any statements for the duration of the agreement (as in Phoenix vs Kotecha)

19/4/13 Another DCA is attempting to collect, providing clear evidence that the insolvency laws continue to abused by the reference to also using the county courts. Attachment 25

 

 

 

Continued in full on Attachment 1

Supporting Documention Attachments 2 to 25

 

That was lucky.....

It transpires that they changed their opening times from 10-4 to 10-2.

First time I accessed the courts since they moved, only a short walk from where I live.

I said that I really did not feel comfortable leaving the documents in the letter box as the papers needed to be in the courts today. Luckily the security guard rang someone and they asked that he take them up.

He rang me at reception where I was waiting a short time later to let me know that the papers were being stamped (date stamped I believe) and that they would be dealt with on Monday. Which is probably ok as I think Monday was my very last day to submit.

Thanks everyone, for your help, I have a niggling feeling that I may have missed something, but I believe have covered the most important bits.

Poppay

 

Hi DonkeyB

Should I send OFT complaint asap? Do I send the same docs that I submitted to court except for the 6.4 & 6.5 forms. will see if can find any examples.

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Yes, but write a narrative based on the timeline of events. Important to say that their actions have, seemingly, deliberately confused, misled and therefore upset you.


“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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