cca noncompliance and court- credit card

[smarmymarmy]

Just returned from allocation hearing- dca didn,t show, but asked the court to hear the case under a small claims hearing 'in order to save me further costs'. I sent a CCA to them on 5th January, received a scrap of paper stating that the debt had been sold to them by RBS- nothing else. allocation hearing originally scheduled for 30March, but had to reschedule as out of the country. On 18th April receive another letter from their solicitors enclosing an copy of an application form dated 28 dec 2001- no apr no terms and conditions- no cancellation rights no statements , incidentally this was for a Credit card. the judge has given the DCA 14 days from todays date to comply with my CCA request, and ordered that they appear before the court either in person or via a ,phone link.What do I do next!!? Should I report them to OFT for noncompliance, or just sit tight and pray they don,t come up with anything? The court date will be the next avaiable one, so could well be a while off. HELP!!!

[humbleman]

so did the judge say that the application was not to be treated as an agreement.

[smarmymarmy]

yes he did.

[Vampyra]

This is good and encouraging news. I think you have to sit tight. The Judge has asked them to comply with something and you should not in any way interfere with that. Let them dig their own hole. If they come up with the goods - so be it - if not, let the Judge decide!

[diskmandave]

This is excellent news! Confirmation from a judge that an application is not an agreement. Any chance of scan/s?

[smarmymarmy]

Hi will try and scan and load in the morning!! Can,t beleive this is happening, having thoroughly read all the threads re application and agreements! I also mentioned that as the application form went back to 2001, it could be affected by the 6 year rule.

[smarmymarmy]

in my excitement I put the wrong date re application! should have been 17th Jan 2001- not 28th Dec- hence reason I mentioned 6 yr ruling!!

[dannyboy660]

Sounds VERY exciting!!!

 

Subscribing, and wishing you all the best.

[grobbo24]

Good luck with this, let's hope that they can't comply with the judges ruling, this could turn out very favourably for a lot of people on this forum.

[NailPost]

who is the debt collector?

[smarmymarmy]

really prefer not to name names at this stage of events, but the card is RBS

[smarmymarmy]

received correspondence from the court today confirming that the DCA has 14 days ( 14th May) in order to provide all information to the court as per my correspondence of 4th Jan and 18th April ie statements, original AGREEMENT etc before 4pm on that date.

[diskmandave]

Good luck!

 

Keep us posted...

[smarmymarmy]

well- to update! dca failed to comply with court ruling to provide all info by 14th May so I applied to the court for the case to be struck out- to be heard tomorrow 15thJune. had letter from the court at the weekend stating that if the claimant failed to attend by ,phone case would be struck out. fine- until yesterday when a pile of statements ( with unlawful charges), yet another copy of the application form ( with no apr or terms and conditions)2 letters dated last October purportedly showing that the debt had been sold ( neither of which I received) plus a copy of the schedule which is signed but not dated. Contacted OFT yesterday who put me on to trading standards- have put in a complaint (CL Finance). contacted the court this morning to inform them that they have still failed to fully comply, and got the hearing tomorrow! HELP!!! All sugestions very gratefully received- I was completely unprepared for this lot

!

[diskmandave]

This sounds very much in your favour, still no agreement and the judge has already said that the application isn't to be treated as such. You're using all the right words in your own post so stick with them as it already sounds like the judge is leaning your way!

 

Have a good brush up on these before you go...

 

Consumer Credit Act 1974

http://www.crw.gov.uk/resources/consumercreditact1974.pdf

 

The OFT Debt collection guidance. Final guidance on unfair business practices, July 2003 (updated December 2006).

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

 

I think i'm also right in saying that the CC Act 2006 is not retrospective either if that gets brought up.

 

Good luck & best wishes, regards, Dave.

 

[smarmymarmy]

many thanks for the links Diskmandave- I,ll do my homework tonight- this has really made me see red!

[tomterm8]

1. If the bundle didn't include the terms and conditions of the account, it still doesn't comply with the Credit Agreement Request.

 

2. the judge already ruled that the application form wasn't a credit agreement. Do you have the transcript of the last hearing? if so, liberally quote from it. if not, post it and explain why it is not a credit agreement (minus personal details)

 

on diskmandave's point, remember to quote Schedule 3, section 11 of the Consumer Credit Act 2006 (if this gets brought up) .

 

If you have any questions, ask them.

 

Good luck.

[tomterm8]

I'll further note, that a statement of account as required by the Consumer Credit Act is not the same as statements of account delivered through your door each month.

[domyheadin]

gl with the hearing, your news is really brilliant to read:)

[rory32]

Subscribing

[rory32]

There is also the issue of taking you to court without issuing a Notice of Assignment.

 

With regards to notice of assignments from DCA's.

If the notice includes an amount demanded that is incorrect it renders the notice legally invalid (e.g. unlawful charges or DCA admin/collection charges).

Even if the amount doesn't include charges but is misstated it is still invalid.

If the date is incorrect it is legally invalid (i.e. does not tie in with the deed of assignment - the execution of assignment should be the same as the date shown on the notice).

The case that supports this is W.F.Harrison & Co Ltd v Burke [1956] 1 WLR 419

[smarmymarmy]

the notice of assignment has no date on it at all! many thanks!!

[diskmandave]

This is looking much better now!

 

Good luck tomorrow, keep us posted!

 

Regards, Dave.

[tomterm8]

To clarify my point, here is what a statement of account under the CCA must comtain:

 

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,--

Consumer Credit Act 1974 (c.39)

(a) the state of the account,

(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.

(2) If the creditor possesses insufficient information to enable him to ascertain the

amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that

paragraph if his statement under subsection (1) gives the basis on which, under the

regulated agreement, they would fall to be ascertained.

[birchave0]

subscribing!