Help with an old debtor- CCJ looming!!

[rich2568]

Mmmm.. Interesting Tomterm.

 

It`s becoming quite a thread this don`t you think?

[tomterm8]

Mmmm.. Interesting Tomterm.

 

It`s becoming quite a thread this don`t you think?

 

Always gets more interesting AFTER Laiste gets involved.

[rich2568]

Hiain

 

Visited the court in person and got told by them that I have to await directions by the judge before any argument against their application (Summary Judgment) is presented. No matter how long I stood there- I wasn`t going to obtain a copy!!

 

Anyway here is a copy of the Notice Of Assignment I have finally been able to scan.

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=735&stc=1&d=1183515612

[gerryb2]

Hi Rich,

 

Seems you have excellent advice with Laiste and tomterm onboard.

 

I would however ask to speak to the Court Manager about their refusal to provide you with a copy of their application. If the Court Manager refuses to speak to you then insist on making an official complaint.

 

As Laiste mentioned you need to see what is in their application notice before the judge makes a decision.

 

I will keep following your thread with interest

[tomterm8]

Hm, is it just me, but does that notice of assignment only assign the rights of the contract to tessera? Is this an equitable assignment?

 

Do they have any legal right to bring an action?

[rich2568]

I`m still unsure this document is not legal Tomterm- just where is the amount transferred- it could be £1 for all we know? Also I never received the Egg Credit Card Conditions that it is relating to!

 

Finally:-

I would however ask to speak to the Court Manager about their refusal to provide you with a copy of their application. If the Court Manager refuses to speak to you then insist on making an official complaint.

 

This is the 3rd day I have spoken to the court and still they state `the app. notice stays with the judge until a direction is given `(from the Court Manager). Obviously as a defendant you have got to put in your strongest defence so if summary judgment is given then the judge will allow the app. to be listed- thus there will be a hearing where you will bash out your case!!

[Laiste]

Hi Rich, Gerryb2 &Tomterm,

 

I am furious that the Court staff are giving you the runaround like this! Do they know anything about the CPR??? I'm beginning to think NOT! The Claimants had a responsibility to serve on you a copy of their application and any supporting documents. Given that they have not had the courtesy to do this, because they are trying to gain an unfair advantage in the case, you are entitled to a copy from the Court. Any documents filed at the Court should also be served on the other parties in the case. The Court staff clearly do not understand the concept of "filing and serving" and are acting in a way that is prejudicial to your case. Given that the Claimants have made an application, you are entitled to see it, (as previously stated, acopy should have been sent to you) so that you can decide if you want to submit one also, then the Judge can consider both applications and make an "informed" decision.

 

If they continue to refuse you a copy, all they are doing is creating additional work for themselves and the Judge! Lets assume the Judge decides they can have a Summary Hearing. This will be communicated to you via an Order sent in the post. The Order gives either party (usually) 7 days to apply to vary/object to the Order. So you would then file your app notice, explaining in your letter that you were denied the opportunity to also file an app notice at more or less the same time as the Claimants, as they conveniently did not send you a copy. Furthermore, the situation was compounded by unhelpful Court staff, who on two occasions refused to provide you with a copy of said application! How on earth can either the behaviour of the Claimant or Court staff be said to be working in conjunction with the Overriding Objective as the CPR requires? Both the Claimant and Court staff are frustrating the legal process, one deliberately, one probably out of ignorance, but nevertheless this impacts upon your case!

 

I completely agree with Gerry, you should report this to the Civil Section Court Manager, detailing some of the points I have raised in this post. If he/she acts unreasonably, take the details to make a formal complaint, as this is unacceptable. The bottom line is, it's not your fault that the Claimants did not serve the app notice on you and the 1st you knew about it was in the AQ!! You should not be at a disadvantage because of the Claimants dubious practices!

 

Rant over, and relax.....!!!!!

 

The document scanned up does not amount to a NoA, so the assignment remains equitable, so they cannot sue in their own name. It is legally unenforceable anyway, as it doesn't contain the amount to be transferred. Their case is over, before it begins!!!

 

I hope this is helpful Rich!

 

Regards,

 

Laiste.

[rich2568]

Thanks Laiste- and a very big welcome again to this ever interesting thread- not that you ever went away from it of course:)

 

Thanks for your comments and I aplologise if my post got you all hot and bothered- it wasn`t my intention!!

 

I understand what you are saying and I will compose a letter to the court this eve. detailing the issues you have raised with reference to the lack of the Overriding Objective as per the CPR!

 

Yes-Laiste I am wound up too- but I`ll get there- with a little help from my friends as they say;)

[make them aktiv runners]

Hm, is it just me, but does that notice of assignment only assign the rights of the contract to tessera? Is this an equitable assignment?

 

Do they have any legal right to bring an action?

 

Laiste already answered. I thought you may be interested in this document I found. It is written by a company who purchase debts, although it is a different debt type, page 2 does have a very familiar statement of what is an Equitable assignment.

 

http://www.pro-ltd.co.uk/uploads/pro_debt_purchase.pdf

[Laiste]

Hi Rich,

 

To get hold of a copy of their app notice asap, I think you should ring their sols. Speak to whoever is dealing with the case and ask why you haven't been sent a copy of it. In all likelihood they'll deny that they haven't sent it! You will need to point out that the 1st you knew about their application was in their AQ! Don't mention any of the difficulties with the Court, but if they tell you to obtain it from the Crt, tell them that under the Civil Procedure Rules they are obliged to furnish you with a copy. Tell them you require a copy immediately, otherwise this matter will have to be reported to the Court, as I dare say they won't be able to "prove" it was sent will they? If you have access to a fax that would be ideal. If not, insist it is sent by email to you today! Ask for the application notice and all of the accompanying docs that were submitted.

 

Get the name of the person you are dealing with and ask what time you can expect to receive it. Accept no waffling, glib, trite answers from whoever you speak to, you have a right to a copy! Lets face it, if they were concerned that you received a copy, they would have sent it by guaranteed delivery, wouldn't they? A copy has never been sent, so that they can get an advantage!

 

I would put the complaint to the Court on hold for the moment, that is going to take time and you need the app notice NOW!

 

Regards,

 

Laiste.

[rich2568]

Thanks Laiste

 

I have called the number on the claim form - states direct line, plus their tel. no listed on the Law Society website. All I am getting is a recorded message on one line and then BT Call Minder on the other. They both ask for your name/ref.no/daytime tel. no. etc..

 

I`ve left my details in case they decide to take the courtesy to call me back. I will also keep trying for the rest of today and then start all over again tomorrow.

 

It`s interesting to see on the Law Society website that it only has 1 regulated principal/ solicitor at their `Head Office! Also nothing listed at Companies House- looks like another shadow company set up to outwit individuals!!

[Laiste]

Hi,

 

I would never have envisaged getting hold of a copy of an app notice would turn into such a farce! What kind of operation are these solicitors, or should I say solicitor:rolleyes: running? Has the resonance of a mickey mouse organisation! Is there a website and perhaps an email address you can post a brief letter to?

 

I am thinking that if you don't get any joy by mid-afternoon with the sols, it would be a good idea to put a letter together and send it to them by g/d before the end of business tomorrow. Asking that they provide you with a copy+accompanying docs by return, is your best plan I think. By the time we've waited for the Crt to investigate the matter, the case will be over!

 

Regards,

 

Laiste.

[rich2568]

Thanks Laiste.

 

It took some doing. After 5 phone calls I finally spoke to the appropriate individual- and it wasn`t even the solicitor himself! He was out of the office and it was up to his secretary to deal with my request and get back to me.

 

Eventually she informed me that a copy of the App. Notice is in the post today. They do not forward these type of documents by e-mail or fax however! I have got the name of the person responsible and if it doesn`t arrive tomorrow I will be telephoning them back.

 

I did ask them to dictate the contents of the notice to me over the phone, but the solicitors secretary stated that it was now locked away until tomorrow as she was about to lock up the building herself and go home (it was only 4.30!). It seems her boss spends an awful long time out of the office!

 

Regards.

 

rich

[rich2568]

Just received the app. notice(N244/2) in the post.

 

Here is a transcript of the document:-

 

PART A

 

We Tessera etc.. Intend to apply for an order that There be Summary Judgment under Part 24 against the Defendant for the amount set out in the Particulars of claim

 

Because the Defendant has no real prospect of successfully defending the claim and there is no other compelling reason why the claim should be disposed of at a trial. Attention is drawn to Rule 24.5(1) which provides that if a respondent to an application to Summary Judgment wishes to rely upon written evidence at the Hearing, he must, at least 7 days before the Hearing (A) file written evidence (B) serve copies on every other party to the application.

 

PART B

 

We wish to rely on :tick one box- the attached witness statement (not ticked) my statment of case (not ticked) evidence in Part C overleaf in support of my application (not ticked)?

 

PART C

 

We wish to rely on the following evidence in support of this application.

 

Please see attached Witness Statement and Exhibit of XXXXXXXXX of 27th June 2007.

 

 

I have requested from them today the `attached Witness Statement and Exhibit`. We`ll see what it states when it arrives tomorrow.

 

I`ll report back when I have it in my possession.:-|

[rich2568]

The Egg agreements don't need cancellation rights as there was no face to face discussion between creditor and debtor prior to the signing of the agreement. Therefore, they are non-cancellable agreements.

 

Looks like the prescribed terms within my agreement do not need to include cancellation rights? Its been quoted within the new thread `Agreement Enforceability`- under heading `General`.

[rich2568]

I`ve completed 3 posts with no reply?

 

Maybe I`ll start another thread with a more eyecatching headline!!

[Laiste]

You're perfectly eyecatching as you are Rich! I'm very busy at the moment, you're competing for my attention I'm afraid, hence no reply!

 

Did you receive the witness statement in the post that was part of the application? If not, they are deliberately withholding info from you to keep you in the dark. Keep a record of all calls, people spoken to, emails sent/received, letters etc, because when you have to go to the summary hearing you can present the Judge with a detailed record of their attempts at obfuscation! You must record as much info as you can recall thus far to paint a picture to give them a bloody hard time in front of the Judge. Their behaviour is disgraceful and must be brought to the Judge's attention.

 

Laiste.

[rich2568]

Did you receive the witness statement in the post that was part of the application?

Laiste

Yes it was received today- check your pm`s;)

 

Also Laiste, the fact that no T & C`s came with the copy of the CCA? Does this make the agreement unenforceable?

 

I`ve since read also that there doesn`t need to be cancellation rights within it as there was no face to face contact to complete the application-it`s a non-cancellable agreement?

[rich2568]

It appears that there are cases of judges accepting that any penalty charges levied within the particulars of claim can just be deducted back to the defendant. Meaning that the claim continues but with a an adjusted amount/

 

I am talking about people who c/claim against a DCA who originally sues them for a c/card debt.

 

Any comments out there?

[tomterm8]

I think Laiste is experiencing technical difficulties at the moment.

 

i have seen cases like the ones you describe. the district Judges are technically incorrect, but DJ's aren't specialists in Consumer Credit law and need everything explained to them.

[rich2568]

Trying hard now putting together an amended defence (HELP HELP HELP!!!) for my application notice to the court.

 

I feel it is imperative now I have read the claimants Witness Statement!!:-|

[minky93]

Just bumping this to the top

 

Wish I could help! I just hope someone comes along soon that can...... hopefuly Laiste.

 

I know I am no help but I wish you all the very best....

 

minky xxx

[rich2568]

I think I`m running out of time:(

 

The Court advised me today that the directions from the judge will probably take place this week . This is because the App. Notice for Summary Judgment was received on 28 June 2007 and generally the directions are sent out within 2 weeks.

 

Laiste is a busy busy bee and what she has advised already I have appreciated so much. I`m sure she`ll be back soon:?

[make them aktiv runners]

TomTerm8 has written some excellent defences. Search through some of his postings and you may find some relevant to you.

[tomterm8]

District Judge

 

 

 

In the matter of XX Vs Rich2568

 

 

 

Claim No: XXXX

 

 

 

In Court Name

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Your Address

 

Date

 

Court Address

 

 

 

 

 

Dear Judge,

 

I am writing to you in light of the recent application by the claimant in this trial, which states “the Defendant has no real prospect of successfully defending the claim and there is no other compelling reason why the claim should be disposed of at a trial. “

 

I note that the application was not served upon me at the correct time, and that this letter is therefore rather hasty in its construction, and ask for your forbearance in this matter.

 

Given the nature of the application, it seems vital that the issues in this case that I believe are relevant should be brought to your attention, as should the reason for such a brief defence.

 

 

 

 

The issues I believe are relevant to this case are:

 

Non-binding nature of alleged credit agreement

 

On DATE I sent the claimant a consumer credit request under the Consumer Credit Act 1974. The claimant after some delay, and after the defence was filed, produced a pre-contractual document which expressly stated that it would not bind both parties until some future action by the claimant or original creditor. I note that under s59:

 

59.--(1) An agreement is void if, and to the extent that, it purports to bind a person to

enter as debtor or hirer into a prospective regulated agreement.

 

Since this agreement allegedly became binding after the date the original creditor signed it, it purports to bind me into a prospective regulated agreement, while not so binding the original creditor.

 

In any case, the document they sent is not in the prescribed format, and the response does not appear to completely fulfil the requirements of the Consumer Credit Act 1974 (for example, it does not include any terms and conditions mentioned in the agreement) , and so is enforceable only on court order. If the case comes to trial, and the court decides that the agreement should be enforceable, I intend to ask the court to vary certain terms, including any interest-after-judgement term on the basis of equity and hardship.

 

Addition of unlawful penalty charges

 

It is my belief that the claim’s principal figure is comprised wholly or in large part of penalty charges incurred on the account before and after the account was sold to the claimant, and that these penalty charges are greater than any reasonable estimate of the liquidated damages.

 

I intend to issue a counter claim when the claimant sends information discussed below that I have asked them to disclose.

 

I would note that if the trial judge were to find that my contention were correct, this would amount to finding that the claim and consequently any prior default notice sent by the creditor is inaccurate, and under such circumstances the claimant would not be entitled to seek an enforcement remedy for the court at this time.

 

Notice of Assignment

 

I do not remember ever receiving a notice of assignment from the claimant, and put him to strict proof that such a document, complying with all the requirements, was received by myself. I further place the claimant under strict proof that he has a document of assignment for the above alleged debt, since he has refused to disclose this document to me. Finally, I place the claimant under strict proof that the figure stated in such a notice of assignment did not include any unlawful penalty charges, and was thus entirely accurate. If the notice of assignment is inaccurate in any way, it is void and no contractual relationship exists between the claimant and me.

 

 

 

 

Failure to abide by the Data Protection Act 1998

 

When requesting information about this case, the Claimant has informed me that the original creditor retains substantial data about me. The original Creditor has allegedly assigned all rights and duties under the account, and so retains no legal right to process this data.

 

 

As the new data controller, and by allowing the original creditor to continue processing my data without lawful reason, the claimant has breached my right to privacy under the Human rights act 1998 and the Data Protection Act 1998 by disclosing information without my consent.

 

It is my intention to claim damages for these breaches of my human and consumer rights.

 

Failure of the Claimant to disclose information vital to this case

 

The following information is vital to my case, but has not yet been disclosed by the claimant (all information relating to both before and after the claimant allegedly purchased this debt):

 

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

c. Where there has beenany event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

k. A copy of all account statements for the duration of the agreement.

 

3. Any other documents you seek to rely on in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

 

 

I apologise for the fact that the information in my defence is admittedly quite scant, but would ask that the court take into account the delay caused by the claimants failure to disclose all information I asked, both before the defence was due and even up to the current date.

 

It is my intention to file an application notice to amend my defence and also both the counter claims mentioned in this defence, further counter claims once all information requested for disclosure by the claimant is sent to me.

 

 

I do not wish to file these application notices before all relevant information is sent since they would not be adequately particularised, but hope this rather hasty letter, which only gives a summary of my arguments which will be more thoroughly argued with applicable case law and statutory references in my defence and counter claim, shows that there are several issues that need to be brought to trial.

 

Thank you for your help in this matter,

 

Yours Sincerely,

 

XXX.