CCA 1st Credit / Connaught **SET ASIDE WITH COSTS**

[42man]

Does it have an official court stamp on it HAK ?? it should be easy enough to set aside due to non compliance with your CCA request....

 

your answers are right here HAK...

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

[42man]

It might even be worth calling your local court and asking about it....

[42man]

I apply for the statutory demand to be set aside as the creditor is aware the debt is in dispute, the creditor has failed to comply with its obligations under the Consumer Credit Act, and I believe that the creditor issued this statutory demand as an abuse of process intended to pressure me into paying the full amount of a disputed debt contrary to the OFT Debt Collection Guidelines.

 

The creditor has defaulted under section 78 of the Consumer Credit Act 1974 for failing to provide a copy of the alleged agreement on request within the prescribed period. Under the provisions of s78 (6), the creditor is not entitled to enforce the alleged agreement while this default continues. My request under s78 of the Consumer Credit Act 1974 was sent to 1st Credit, the debt collection agency who claims to be dealing with the alleged agreement and have raised the statutory demand. This request was received and signed for by them on the xx xxxx 2007. (attached exhibit marked 'A')

 

Further, I believe that the amount of £xxxx.xx referred to in the statutory demand would no doubt include a substantial sum of unlawful penalty charges. (DCA name) have not provided further information regarding the the account, and still have not provided a statement of account (as requested under s78 CCA 1974).

 

a) 1st Credit have not provided a notice or document of assignment(no proof they own the debt)

(b) 1st Credit have not provided a consumer credit agreement (no proof the debt is enforceable)

© 1st Credit haven't proved that the amount of the debt is stated;

(d) it is likely that illegal charges placed on the debt, comprising a substantial amount of the debt, and so the statutory demand is for a disputed debt.

 

I request that the statutory demand is dismissed and I gracefully request that the court pays my costs of £50

[42man]

I am going to fill it in tonight and pop it to the local courts tomorow.

 

I am going to use this defence:

 

1) Do not admit the debt because the existence/enforceability of the alleged debt is in dispute:

 

The respondent alleges that the applicant is indebted to it in the sum £4127.00, being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 (“CCA”). It is further alleged that the debt was assigned to the respondent from Citifinancial Europe Plc on 17/10/2007. The applicant will say that the statutory demand should be set-aside upon the following grounds;

 

a) The applicant does not admit that the debt exists. The respondent is put to strict proof that that the alleged agreement was entered into between CitiFinancial Europe Plc and the applicant; and at what place and on what date and upon what terms. (you've already disputed it with the CCA, putting this might encourage the judge to allow them time to produce it !!)

 

b) In the event that the burden of proof is discharged as set out in paragraph 1) above and entirely without prejudice to the same, the applicant does not admit that the debt is legally enforceable. The respondent has disclosed a copy of the agreement under which it alleges the debt to be owed in response to a request under CCA s.77(4). The alleged agreement is unexecuted and devoid of CCA prescribed terms and accordingly is unenforceable as a matter of law. The alleged agreement is exhibited hereto as ‘B’.

 

c) The respondent is put to strict proof that the alleged debt has been properly assigned. (As I mentioned above)

 

d) The respondent is put to strict proof that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.88(1). Further or alternatively, the alleged debt contains sums levied by way of penalty charges which the applicant will say are contrary to common law. Accordingly, any default notice which may have been served could not have contained accurate particulars of the outstanding debt and would therefore have been defective and invalid. (use the default notice as well but again don't ask to put them to proof as above)

 

e) The applicant has potential grounds of action against the respondent for damages in respect of the applicant’s pain, suffering and loss of amenity caused by the respondents excessive harassment and that of Citifinancial Europe Plc. Accordingly, any proceedings initiated by the respondent may be subject to a counterclaim.

 

f) Attention is drawn to recent correspondence between the applicant and the respondent, exhibited hereto as ‘C’, in which the grounds upon which the alleged debt is disputed were set out clearly, coherently and in full. The respondent was invited to file a County Court claim in order that, in the interests of justice, the many matters at issue can be fully, fairly and properly determined before a judge at trial. The respondent has declined to do so.

 

g) The respondent has chosen to serve a statutory demand by ‘regular’ post in full knowledge of the fact that the debt is subject to an ongoing vigorous legal dispute. In view of this, and of the matters pleaded above, the applicant avers that the service of the statutory demand is demonstrably frivolous, intimidatory and an abuse of process.

 

Accordingly, the applicant respectfully requests that the statutory demand be struck out or set-aside. Further, the applicant invites the court to make an order of costs in favour of the applicant in respect of the reasonable cost of preparing this application and of attending any hearings in respect thereof.

 

I make this statement with the sworn belief that all facts stated are true.

 

any comments

 

Otherwise good....!!

[42man]

Just avoid the 'put to proof' as the debt is already disputed and the judge might adjourn to give them time to come up with the paperwork, And in fact quote the OFT's guidelines.

 

 

Deceptive and Unfair Methods

2.8 (k)

k. not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

[42man]

I apply for the statutory demand to be set aside as the creditor is aware the debt is in dispute, the creditor has failed to comply with its obligations under the Consumer Credit Act, and I believe that the creditor issued this statutory demand as an abuse of process intended to pressure me into paying the full amount of a disputed debt contrary to the OFT Debt Collection Guidelines.

 

The creditor has defaulted under section 78 of the Consumer Credit Act 1974 for failing to provide a copy of the alleged agreement on request within the prescribed period. Under the provisions of s78 (6), the creditor is not entitled to enforce the alleged agreement while this default continues. My request under s78 of the Consumer Credit Act 1974 was sent to 1st Credit, the debt collection agency who claims to be dealing with the alleged agreement and have raised the statutory demand. This request was received and signed for by them on the xx xxxx 2007. (attached exhibit marked 'A')

 

Further, I believe that the amount of £xxxx.xx referred to in the statutory demand would no doubt include a substantial sum of unlawful penalty charges. (DCA name) have not provided further information regarding the the account, and still have not provided a statement of account (as requested under s78 CCA 1974).

 

In summary

a) 1st Credit have not provided a notice or document of assignment(no proof they indeed own the debt)

(b) 1st Credit have not provided a consumer credit agreement (no proof the debt is enforceable)

© 1st Credit have not proved that the amount of the debt is stated;

(d) It is likely that illegal charges would be placed on the alleged debt, which would comprise a substantial amount of the alleged debt, and so the statutory demand would be for a disputed debt.

(e) 1st Credit have not provided any copies of any default notices which potentially could lead to a counterclaim. - Settled law regarding 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but allow the Defendant to submit a counterclaim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

The respondent has chosen to serve a statutory demand by ‘regular’ post in full knowledge of the fact that the debt is disputed. In view of this, and of the matters pleaded above, the applicant avers that the service of the statutory demand is demonstrably frivolous, intimidatory and an abuse of process.

 

I will also quote from the OFT's guidlines on debt collection which clearly state - Deceptive and Unfair Methods

2.8 (k) . not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

 

Accordingly, the applicant respectfully requests that the statutory demand be struck out or set-aside. Further, the applicant invites the court to make an order of costs in favour of the applicant in respect of the reasonable cost of preparing this application and of attending any hearings in respect thereof.

 

I make this statement with the sworn belief that all facts stated are true.

Edited August 18, 2008 by 42man

[42man]

ok HAK that should be ok for you IMO...I have edited it a few times...

[42man]

Type it up if you can....I notice there are 2 guests watching also !!! (both from 1st Credit no doubt !!)

[42man]

If for any reason the court laugh it off, I suggest you send an official complaint to 1st Credit, if they fail to respond within 14 days, send the stat demand to TS, FOS and OFT....!!

[42man]

Add 2.6 (h) too from the OFt's guidelines...

 

h. ignoring and/or disregarding claims that debts have been settled or are

disputed and continuing to make unjustified demands for payment

[42man]

The affadavit has to be sworn in front of a court officer (free)...or in front of a solicitor (normally costs £5)...

[42man]

1 copy for the court and 1 for you....!! BUT I would ring them first to check....

[42man]

Good work HAK....see it through...did they actually say it was a fake statutory demand ?

[42man]

Go for it HAK....

[42man]

They may turn up HAK....but reading a few of the other posts then probably not....but stick to your guns, address the judge as 'sir', be confident and clear and don't forget to claim the costs....

[42man]

And no it's not like a trial, a smallish room, with you the judge and (if they turn up) the others !!!

[42man]

HAK.....

 

Not sure what you will be putting forward....remember you are substantially disputing the debt !!!

 

Let me know if I can help...

[42man]

Yep...

[42man]

Just remember HAK....you disputed the debt before the SD came through, they have not contacted you stating that it is their intention to drop the SD......i'd be pretty annoyed...!!! It is a serious abuse and a waste of the courts time to use the Insolvency service as a method of collecting disputed debts !!

 

You might find this interesting to HAK !!!

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/135078-me-1st-credit-stat.html

[42man]

Is there no name and number on the demand HAK ?

[42man]

It doesn't have to be 'signed' as such but it has to have the name and number of a contact on the demand...

[42man]

You know what to do HAK !!!

[42man]

Unbelievable....!! you know what to do HAK....fill your boots..

[42man]

I imagine you're probably looking forward to it to be honest !!!

[42man]

HAK...thought you might like to see this - http://www.consumeractiongroup.co.uk/forum/legal-issues/161411-off-court-within-week.html