Mahala v Aktiv Kapital ** WON **

[Movingon]

Here's the details sent to the Court

 

I intend to apply for an order that:

 

The Judgement entered in the subject Claim be set aside and the debt referred to therein is unenforceable and therefore annulled

 

because:

 

The claim was served at an address at which the defendant did not reside and therefore the defendant had no knowledge of it. Also the claim amount is disputed in whole; there is evidence to suggest its inaccuracy and no evidence to substantiate any claimed amount.

 

 

PartC: Statement

 

Enc. 1 - Statement of Account provided by current debt owner with no details bar the balance.

Enc. 2 - Certified true copies of letters sent to the current debt owner disputing the amount and requesting documentation. The replies thereto.

Enc. 3 - A letter detailing assignment to the current debt owner. A letter to the current debt owner outlining the dispute.

Enc. 4 - The response by the original Creditor to a Data Subject Access Request showing no balance information and bearing a statement that no further information is available.

Enc. 5 - A printout from the current debt owner acknowledging sight of statements which show payments on the original account. Unfortunately these statements no longer exist.

Enc. 6 - Draft Order setting aside the Judgement and annulling this alleged debt.

 

Under s.77 of the Consumer Credit Act an alleged debtor is entitled to receive within 12 working days a true copy of the executed agreement and other documentation relating to the debt. If the documentation is not received in this time period plus one calendar month the creditor commits an offence. The documentation was requested in May 2006 (Enc.2) and received in February 2007.

The copy of the agreement received clearly shows an annotation of the credit limit agreed which was £300. It was not possible to exceed this credit limit. The statements provided to the current debt owner (see Enc.5) show payments totalling £233.97 and the defendant is convinced that other payments were made by cheque and that the balance was clear before the "debt" was passed on. A Subject Access Request to the original Creditor, GE Capital Bank, resulted in a few transaction records but no balance information (Enc.4) and bore a statement that no further information was available. Between 1999 and August 2002 no communication was received from any agency by the Defendant regarding any debt; the first communication acknowledged was the letter of assignment to the current debt owner, following the Judgement. A statement of account provided by the current debt owner shows no transactions. (Enc.1)

The amount of the original claim is therefore disputed as wholly preposterous and arbitrary. The amount cannot be substantiated by the original creditor or the current debt owner. This dispute was not brought to the attention of the Court until now due to the search for evidence and the interaction with the current debt owner being particularly unproductive and slow.

It is requested that the Judgement in this Claim be set aside and the alleged debt annulled on the grounds that (a) No opportunity was afforded to the Defendant to defend any claim and (b) the amount claimed is unrealistic in light of the available evidence and no debt amount can be proven by any legally satisfactory means.

Draft Order: see attached Enc. 6

 

DRAFT ORDER

XY 202300

HOWARD COHEN AND CO

-V-

MAHALA J STONELAUGHTER (NÉE ****)

IT IS HEREBY ORDERED THAT

UPON READING THE DEFENDANT’S SUBMISSIONS AND IN THE ABSENCE OF ANY EVIDENCE FOR THE CLAIMED DEBT AMOUNT

 

1 THE JUDGEMENT ENTERED IN THE SUBJECT CLAIM BE SET ASIDE

 

2 THE CLAIMED DEBT IS ADJUDGED UNENFORCEABLE AND IRRECOVERABLE AND IS THEREFORE ANNULLED

 

3 ANY DEFAULT REGISTERED IN THE DEFENDANT’S CREDIT RECORD REGARDING THIS DEBT BE IMMEDIATELY REMOVED AND TOTALLY ERASED.

[Movingon]

We have a court date! We attend court on 21st Dec at 14:00 hors... I had applied for "Without Hearing" but obviously the Judge has questions. We're both VERY nervous now! Mahala intends to write to the court asking if I can attend court to assist (rather than as an observer) as I have put this entire case together and am a little better versed in the "stuff" than she is.

[Movingon]

Well, today's the day... wish us luck!

[Movingon]

WE WON!!!

 

The original claimant sent in a half-arsed letter disputing the application (as expected) but did not turn up.

 

see below for full story...

[elsinore]

CONGRATULATIONS!!

Well done Tom and Mahala. What a cracking result and one in the eye for AK!!

 

Happy Xmas:D

 

Els

 

p.s. Would you like the thread title changed?

[Curlyben]

[Movingon]

OK - blow by blow...

 

We arrived at Court and sorted the paperwork into the right order which I'd forgotten to do!

 

Two gentlemen turned up but did not approach us; we dreaded that it might be CL Finance the original claimant but it wasn't....

 

The Usher got me permission to attend without a problem and we went in about ten past. The Judge took about 14 seconds to familiarise himself with the case and asked Mahala whether she had told GE Capital (the original creditor) about her address change; she said (and I hadn't known this before) that she was receiving statements from them at her new address in 2001 and making payments on the account... and that the direct debit payments had stopped... so the account must have been clear. The Judge agreed that service therefore had not been "proper" and that the Judgement should therefore be set aside.

 

He then went on to enquire about the debt, what contact we'd had with the creditor(s), whether any application to Enforce had ever been submitted etc... and on hearing all the answers decided (completely out of the blue) also to DISMISS THE ORIGINAL CLAIM!!!!

 

Now, if "they" want to persue this "debt", they must start again from scratch with a new claim, with all the appropriate evidence. I can see the letter from AK in my head now telling us they do not intend to persue it further...!!!

[Movingon]

Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!! Title Change Please!!!

[mahala]

*does a little dance* I won! Just like to add my heartfelt thanks to my hubby Stonelaughter for helping me through all of this. Couldn't have done it without him.

[Alphageek]

Well done both.

[mahala]

This topic was closed on 10 March 2019.

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