ILLEGAL CCJ on ACCOUNT - DESPERATE!**WON AT LAST**

[electric lemon]

Just found this posted previously by "Kingdom"

Hi Electric Lemon

 

I counterclaimed against GE Money although against CL Finance for late payment charges and mis-sold PPI, because CL finance didn't send any paperwork in the judge through it out.

 

I have now to take GE Money to task for the money back, they did make an offer before it went to court which I refused, so they passed it onto CL Finance to cause as much trouble to me as possible and delaying tactics.

 

I can send you a copy of my defence if you wish

how much would your counterclaim be for.

 

Regards

 

Kingdom

 

Sadly I have been unable to get hold of him/her despite trying repeatedly.

[patrickq1]

*_6. _*What do I put as a % for the ?PPI charges on statements as

*"Account premium protection"*???

i think i read a % figure for ppi being aprox 34% and repayment equate to max 4% for 12 months despicable overcharging but what figures have you already got for the ppi then base it on that as you expect to receive full payment if not claimed plus intrest on this of approx 8%

this is my opinion only el and may be wrong so worth checking when Pt arrives back on the thread

patrickq1

[patrickq1]

also read this from vulture bank it may be of interest

*quote "MATERIAL LEGAL ASPECTS OF THE RECEIVABLES*

 

**CONSUMER CREDIT ACT 1974*

*

 

A significant number of the credit transactions that occur on a

designated account will be for items of credit extended to a cardholder for

an amount up to [GBP]25,000. The Consumer Credit Act applies to these

transactions and, in whole or in part, the credit or charge card

agreement establishing each designated account. This has certain

consequences for the designated accounts, including the following:

 

 

Enforcement of improperly executed or modified card agreements

 

 

*If a credit or charge card agreement has not been executed or modified

in accordance with the Consumer Credit Act, it may be unenforceable

against a cardholder without a court order -- and in some instances

may be completely unenforceable. As is common with many other UK credit

and charge card issuers*, *some of Barclaycard's credit and charge card

agreements do not comply in all respects with the Consumer Credit Act

or other related legislation*. As a result, these agreements may be

unenforceable by Barclaycard against the cardholders without a court

order. The transferor gives no guarantee that a court order could be

obtained if required. With respect to those credit or charge card

agreements which may not be compliant, such that a court order could not be

obtained, *Barclaycard estimates that this would apply to less than 1

per cent. *of the aggregate principal receivables in the designated

accounts

on *31 December 2002*. Barclaycard does not anticipate any material

increase in this percentage of receivables in the securitised portfolio.

The accounts that do not comply with the Consumer Credit Act are

still legal, valid and binding obligations of the relevant cardholder and

it will still be possible to collect payments from cardholders *willing

to pay* their debt and demand arrears from cardholders who are

falling behind with their payments. The transferor will have no obligation

to repay or account to a cardholder for any payments received by a

cardholder because of this non-compliance with the Consumer Credit Act.

However, if losses arise on these accounts, they will be written off and

borne by the investor beneficiary and transferor beneficiary based on

their respective interests in the receivables trust.

 

 

Liability for supplier's misrepresentation or breach of contract

 

 

Transactions involving the use of a credit or charge card in the United

Kingdom may constitute transactions under debtor-creditor-supplier

agreements. A debtor-creditor-supplier agreement includes an agreement

where the creditor, with knowledge of its purpose, advances funds to

finance a purchase by the debtor of goods or services from a supplier.

 

 

Section 75 of the Consumer Credit Act provides that, if the supplier is

in breach of the contract -- whether such contract is express or

implied by law -- between the supplier and a cardholder in certain

debtor-creditor-supplier agreements or if the supplier has made a

misrepresentation about that contract, the creditor may also be liable to the

cardholder for the breach or misrepresentation. The liability of the

transferor for a designated account is

called a "Transferor Section 75 Liability". In these circumstances, the

 

cardholder may have the right to reduce the amount owed to the

transferor under

his or her credit or charge card account. This right would survive the

sale of

the receivables to the receivables trustee. As a result, the

receivables

trustee may not receive payments from cardholders that it might

otherwise

expect to receive. As a result, the receivables trustee may not receive

the

full amount otherwise owed by a cardholder. However, the creditor will

not be

liable where the cash price of the item or service supplied concerning

the

claim is [GBP]100 or less, or greater than [GBP]30,000.

 

 

The receivables trustee has agreed to indemnify the transferor for any

loss

suffered by the transferor arising from any claim under section 75 of

the

Consumer Credit Act. This indemnity cannot exceed the original

outstanding

principal balance of the affected charges on the designated account.

 

 

The receivables trustee's indemnity will be payable from excess spread

on the

receivables. Any amounts that Barclaycard recovers from the supplier

will

reduce Barclaycard's loss for purposes of the receivables trustee's

indemnity.

Barclaycard will have rights of indemnity against suppliers under

section 75 of

the Consumer Credit Act. Barclaycard may also be able to charge-back

the

transaction in dispute to the supplier under the operating regulations

of VISA

or Mastercard.

 

 

If Barclaycard's loss for purposes of the receivables trustee's

indemnity

exceeds the excess spread available to satisfy the loss, the amount of

the

excess will reduce the Transferor Interest accordingly. "

[tomterm8]

Hi there,

 

Tom,

 

Firstly, thank you for all your hard work in helping me. Ive gone through everything & I just have a couple of questions.

 

1. Where you have stated " Right of set off for charges" - Is this the Counter-Claim part? And if so shouldnt I put it in under that heading, or should it all go in together?

 

The reason I ask is because I found an amended defence/CC by CAR2403 that looked very different & was under specific headings?

(This is in Car2403 V HFC BANK Thread 67)

 

2. Am I not in the position that while the claimant fails to provide statements of account for the duration of the agreement, it cant prove what the amount outstanding on the account may be, so even if all technecalities were completed, with an enforcable credit agreement provided, the Court still cant enforce the debt????

Any offers anyone - PT are you there??

 

3. Can we not include the "Woodchester Lease Management V Swain" re the Default & NOA as them being unenforcable due to the penalty charges?????

 

4. What about the fact that I wasnt in receipt of the default. Isnt it the case that they need to show it was sent i.e. proof of postage???

 

5. When I calculate the charges Im unsure what % to show on the calculations??? There are 2 stated on the credit agreement:

1. 2.05% per month APR 27.5 for direct debit payments

2. 2.17% " " APR 29.3 for payment by any other means

 

6. What do I put as a % for the ?PPI charges on statements as "Account premium protection"???

 

7. Should it not be quoted about the CCA S.77a CCA 1974/S.6 CCA 1996 regarding the fact that statements must be provided?

 

 

Many thanks Tom, & anyone else that may be able to help.

 

Tom, Im not disputing anything that you have very kindly written, but am trying to see if there are any suggestions of mine that may be valid options or worthwhile considering from my legal peanut of a brain!?

 

EL, all defences are going to look different, but I certainly don't disagree with any of your points. If you add them to the defence, and rejig it etc to your hearts content then I and the other members of the site could give you some advice.

[car2403]

Hey Leccy,

 

There's plenty to go on in your thread, IMHO... try to do this yourself, then shout up if you need help or feel like you're struggling.

 

You'll understand your claim far better if you construct this yourself, including bits that are applicable from elsewhere. (Use my defence/amended defence/skeleton argument if you need to)

 

We all muck in at points, so stick up what you have or PM it to me and I'll take a look for you.

[electric lemon]

Tom term,

 

Think you may have missed this question earlier - Im confused?

 

Where you have stated " Right of set off for charges" - Is this the Counter-Claim part? And if so shouldnt I put it in under that heading, or should it all go in together?

 

Am I not in the position that while the claimant fails to provide statements of account for the duration of the agreement, it cant prove what the amount outstanding on the account may be, so even if all technecalities were completed, with an enforcable credit agreement provided, the Court still cant enforce the debt????

Any offers anyone

 

Can I not include the "Woodchester Lease Management V Swain" re the Default & NOA as them being unenforcable due to the penalty charges????? How do I quote this?

 

Also, I have looked on how I can get a % rate for PPI & there is nothing anywhere that I can go by i.e. anything stated on the agreement re % rates for unlawful borrowing. I presume then that I may as well charge at their normal borrowing rate of 27.5%. At the end of the day it will just give them an idea of what I aiming for wont it?

 

I have to get to bed now & Im at work tomorrow - can I ask is anyone around on Weds if I need to ask/get last minute advice?

[car2403]

Where you have stated " Right of set off for charges" - Is this the Counter-Claim part? And if so shouldnt I put it in under that heading, or should it all go in together?

 

The right to set off for charges will be claimed by them, but there isn't an automatic right to do it without your consent. If you don't consent, the Judge will need to make that Judgment.

 

Am I not in the position that while the claimant fails to provide statements of account for the duration of the agreement, it cant prove what the amount outstanding on the account may be, so even if all technecalities were completed, with an enforcable credit agreement provided, the Court still cant enforce the debt????

Any offers anyone

 

Statements aren't required under CCA 1974, but they are (can't enforce without them) under CCA 2006.

 

Having said that, you can argue the balance is uncertain and your counterclaim is damaged by not having this information - IMHO, this won't stop them enforcing the agreement as a result of this issue alone. The Judge will decide what to do.

 

Can I not include the "Woodchester Lease Management V Swain" re the Default & NOA as them being unenforcable due to the penalty charges????? How do I quote this?

 

Yes.

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE EITHER AGREEMENT CORRECTLY;

Failure of a Default or Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

Just play with the wording to include the NOA issues.

 

 

Also, I have looked on how I can get a % rate for PPI & there is nothing anywhere that I can go by i.e. anything stated on the agreement re % rates for unlawful borrowing. I presume then that I may as well charge at their normal borrowing rate of 27.5%. At the end of the day it will just give them an idea of what I aiming for wont it?

 

That makes sense to me and I think the Judge would agree. There's a possibility he won't, but then the other side can't offer anything different to your version, IMHO, so he (the Judge) will need to call that one as well.

 

I have to get to bed now & Im at work tomorrow - can I ask is anyone around on Weds if I need to ask/get last minute advice?

 

Yes, of course.

[electric lemon]

Thanks so much Chris, thats such brilliant help.

 

Could I ask you to scan over thread posting number '521 at the top of the page here. Its the help that tomterm gave. Im so sorry if I come over as being thick as 2 short planks(!), but I cant see a divide between amended defence & counterclaim?

 

I think it is all amended defence? Is that right?

 

Would I put the Woodchester lease statement in both the amended defence & the counterclaim part as I would be CC'ing £1000??

 

Thanks so much.

[car2403]

It's all an amended defence statement. Your counterclaim statement is a simple statement, perhaps referring to your amended defence statement paragraphs, such as this; (create a separate document)

 

Claim Number: ****

In the **** County Court

 

 

Between:

****

(Claimant)

and

 

****

(Defendant)

 

_______________________

COUNTERCLAIM

_______________________

1. I, ****, (the Defendant in this case) am a litigant in person and I make this Counterclaim statement from my own knowledge and experience.

 

2. The Defendant counterclaims against the Claimant on the following basis;

a. The Claimant has brought this action unlawfully, and has defaulted and terminated the account unlawfully;

b. The Claimant has reported, and continues to report, inaccurate data against the Defendant to credit reference agencies, causing considerable harm to reputation and credit standing. By reporting such data against the Defendant, the Claimant has breached the Defendant’s human rights, in particular, but not exclusively, the right to privacy with associated actions in breaches of confidence, consumer credit law, European law and Data protection legislation;

c. Other substantial legal grounds argued in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

3. The Defendant, therefore, counterclaims against the Claimant in the following terms;

a. Damages in the sum of £1,000, due to the Claimant’s failure to Default and Terminate the Defendant’s account in the lawfully prescribed manner;

b. An Order from the Court enforcing the Claimant’s compliance with the Defendant’s statutory notice under s.10 and s.12 of the Data Protection Act 1998, (issued to the Claimant on ****, a copy of which is attached to this counterclaim statement) and damages at the Court’s discretion due to the Claimant’s failure to comply with that notice;

c. The amount of Charges applied to the Defendants accounts held with the Claimant, as per paragraph **** of the Defendant’s Amended Defence statement, totalling £****. (Charges statement attached)

i. Under the County Courts Act, the Defendant is entitled to interest of 8% per annum from the date they were deprived of the money. This totals £**** at the time of counterclaiming, accruing at the daily rate of 0.021% until judgment or payment.

d. Costs at the discretion of the Court.

I, ****, the Defendant in this case, believe that the facts stated in this Counterclaim statement are true.

Signed:

****

(Defendant)

Dated this, the ** day of ****, in the year two thousand and eight.

 

Having it set out in the same template as your amended defence will make it appear more professional, IMHO. Just amend the above to suit, as need be.

[patrickq1]

subbin send it in today EL

well done CAR

[electric lemon]

Question:

 

 

6. Prejudiced caused in respect of failure to provide necessary data

 

My right of set off exercised above does not reflect the probable charges made in November 2002, March 2003, September 2003, October 2003, March 2004, June 2004, July 2004, August 2004, November 2004, December 2004, January 2005, March 2005, April 2005, July 2006, August 2006, September 2006, November 2006, December 2006, January 2007, at current interest at the rate applied by GE Capital Bank Limited @ 27.5%, totals £1454.52. (see schedule 3 ). Accordingly, I exercise my right under s13 of the data protection act 1998 to take legal action for breach of the data protection principals. These principals require Data Controllers to retain data for as long as necessary and it has been shown above that GE Capital Bank Limited failed to do so. The claimant has purchased all rights and duties of the Credit Agreement, and these duties include statutory duties under the Data protection act 1998.

 

I estimate these damages to be equivalent to the amount the claimant believes outstanding, and I ask the court to exercise set off in respect to this amount.

Im confused here??

 

Should I put in the amount estimated that I have calculated???

 

OR

 

Should I leave the amount out as Tomterm had thought it best that I say the amount is almost the total??

 

If so how can I put in a schedule??

 

HEEEEEEEEEElp.

Many thanks anyone thats out there.

[car2403]

I would leave the amount in, if you can show (with your schedule, which you'll need to attach as an exhibit) how you've calculated - you're stressing it's an estimate only, anyway.

 

Any amount that is inaccurate will render the agreement unenforceable anyway, so long as it isn't so tiny that it should be ignored, so go for it I say.

[electric lemon]

Ok,

 

Here we go last question on the defence. The only statements that CL supplied showed 4 statements with £15 charges. I presume that I put these here as detailed below??

 

 

5. RIGHT OF SET OFF FOR CHARGES.

In the alternative if, which is not admitted, the claimant has produced adequate evidence as to the outstanding amount owed, throughout the course of the agreement, the claimant added numerous default charges (amounting to £60.00 as per the attached schedule 1) to the Account for my failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Particulars of those months in statements provided by the claimant are set out in schedule 1).

 

 

Hope this is right as then I will have amended the amended defence!

 

Thanks Chris - You're my saint!

[electric lemon]

An Order from the Court enforcing the Claimant’s compliance with the Defendant’s statutory notice under s.10 and s.12 of the Data Protection Act 1998, (issued to the Claimant on 24 September 2007, a copy of which is attached to this counterclaim statement) and damages at the Court’s discretion due to the Claimant’s failure to comply with that notice;

 

 

tHIS IS YOURS ISNT IT cHRIS???

 

Can I put in copies of the 2 x orders that CL failed to adhere to in my counterclaim package??

 

Thanks.

 

This would be it & then I can go down to the courts & submit it - hoo flamin ray!

 

Do you know I have had a cluster of 4 migraines this week beacause of this!!

[car2403]

Yes, leccy

[electric lemon]

Thanks so very very much Chris for being there for me today.

 

Honestly, honestly, dont know what I would have done without you today.

 

Wish we werent always having to be anonymous then I could buy you a large one at the local! or take you for a bite, or send you some flowers, or buy an enormous box of choocies!!!!!

 

That goes for everyone to be honest!

 

Im off to the Courts now - Gulp!

 

Its now just a case of waiting & seeing.

 

Feel like Im going to sleep for a week!

[caro]

All the best EL. You deserve a break.

[electric lemon]

Thanks Caro.

 

I dont know if Ive done enough?? However, I have done my best with the limited knowledge I have.

 

Hope Ive at least made some kind of mark.

 

Heres hoping.

[electric lemon]

When I say limited knowledge...I mean mine, not anyones on here:)

[patrickq1]

your questions were the correct Q to ask even i found them interesting and by asking it became clear through the help you have been getting so best of luck and our prayers are with you

patrickq1

[tiglet]

By asking so many questions, you should be really prepared for the court date - if you didn't, you may have fallen at the first hurdle.

 

"He who asks a question looks a fool for five minutes; he who does not ask a question remains a fool forever"

[car2403]

Just don't forget to donate to the site when you win, leccy - that is enough reward for me, so we can continue to help others in the same way.

[renegotiation]

Any news on this lemon?

[patrickq1]

or take you for a bite....aaaaggghhh vampires lol

trust you regen to ask such a question what lemon lol...sorry for the dry sense of humor but at 4.30 in the morn and unable to sleep becuase of matters before me i found the above sentances humorous and that has perked me up some,any way like regen has asked of electric lemon if their is any news i hopefully would like to hear that yes it is good news

patrickq1

[electric lemon]

Hi Guys,

 

Not heard a flamin bean?!

 

However, I realise that I omitted to send a copy of the amended defence & CC tp CL's solicitors. Was this an imperitive or was it something that may have sped a resonse up from CL? I wasnt under the impression that it was a 'must'?

 

Can anyone clarify please?

Many thanks,

Leccy

x