1st Credit CCJ/CO On old MBNA Abbey Credit Card - set aside?

[tifo]

Hi,

 

Notice in my credit files that 1st Credit have the account type wrong.

 

It was actually a credit card account (which they bought) but they have it as a Hire Agreement / Conditional Sale.

 

Anyone advice what i can do?

[lookinforinfo]

It is certainly an infringement of the DPA-failing to keep accurate records,

but I can't see it registering high on the Richter scale of offences. Slap a

CCA request on them and hope they don't comply in time.

[tifo]

i have done that and they have defaulted now (12 working days are over).

 

i also have the same problem from Lowell, where they have detailed a Barclays business account as a Barclaycard credit card (which i have never had). But they have gone further by registering 2 defaults from Lowell Portfolio and 2 from Lowell Financial, making it 4 defaults for the 1 account! Now that must be breaking some rules? After all, only 1 company would have my debt.

[isuedlowellandwon]

They list nearly all their debts as "hire". I am in communication with Experian and the Information Commissioner about this right now. (and probably soon the courts).

 

They have also used false default dates a hell of a lot of the time, so don't take the date they show as being correct for a New York minute.

 

The debt might very well be statute barred and they have used a false default date to keep the "zombie debt" showing on your file and get you to contact them. This is unlawful as per the Data Protection Act 1998.

 

Make the Office of Fair Trading and Information Commissioner aware of this if it turns out to be true.

[tifo]

thanks ...

 

i don't know about the dates, but the account type is wrong ... if they bought it they should know what it is.

 

By the way, how did you sue Lowell as i may start doing something soon as they have listed 4 defaults in 2 company names for 1 debt ....

[isuedlowellandwon]

My Lowell thread is here:-

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/59003-i-sued-lowell.html

 

If you sue them don't go for a fixed amount, sue for damages as per the Data Protection Act 1998 and/or Protection from Harassment Act 1997.

 

You have to do this manually and put "UP TO £1000" etc on the N1 form and cannot use the moneyclaim site, which works for fixed amounts only. Damages need to be determined by the court.

 

Don't sue them to force them to "comply" with the Act as this would cost £100, sue them for your loss of earnings (dealing with it) and damages because they have not complied.

 

Once you get that money you can force them to comply in another claim if they didn't do so already! And claim more costs.

 

The Information Commissioner provides advice in a leaflet here:-

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf

[tifo]

thanks. i would use the N1 form anyway ...

 

why 'upto a £1000'? why not more? small claims can be upto £5000? i'm not getting greedy but what effect do 2 unlawful defaults have on a person, as well as inaccurate information?

 

but first i need to build a case ...

 

any info on HRA, Data Protection Act and CCA would be appreciated as i don't really know what the cost is of an inaccurate default (especially one multiplied by 4).

 

The main issue here is that one of them should not even be defaulting me as they don't own the debt!

[isuedlowellandwon]

thanks. i would use the N1 form anyway ...

 

why 'upto a £1000'? why not more? small claims can be upto £5000? i'm not getting greedy but what effect do 2 unlawful defaults have on a person, as well as inaccurate information?

 

 

Well it's up to you for what amount you feel you can justify. You pay for starting a claim on a sliding scale depending on what amount you are claiming.

 

If you go over £1500 you have to pay the court another £100 when you file the allocation questionnaire a few weeks later, for the claim to continue.

 

I do it manual and use "up to" because if you claim for harassment or anything to do with damages you really need to let the court decide on the award and not try and quantify it unless you can specifically in a fixed amount claim (like using moneyclaim).

 

For example you can't just say "I couldn't sleep for 2 nights, I want £200" you'd need to say "I couldn't work due to lack of sleep which caused me loss of income of £200, proof provided."

 

I never go for fixed amounts anymore using moneyclaim.

 

I have learned from defences filed of suing 5 DCAs.

[tifo]

If you go over £1500 you have to pay the court another £100 when you file the allocation questionnaire a few weeks later, for the claim to continue.

 

i thought that was only for claims over £5000 and not £1500?

 

i say this because i have had DCA's take me to court for amounts just near £5k and they only asked for the £120 fee as 'costs', which they got.

[isuedlowellandwon]

i thought that was only for claims over £5000 and not £1500?

 

i say this because i have had DCA's take me to court for amounts just near £5k and they only asked for the £120 fee as 'costs', which they got.

 

It is listed here under Fee No 2.1

 

Guide to Civil Proceedings Fees - From 6 April 2006

 

They made me pay the extra £100 when I sued my landlord for just over £1500 and filed the allocation questionnaire.

[tifo]

ok thanks. ..

 

i was under the impression that an AQ only got sent for claims over £5k ....

[tifo]

Hi,

 

I have two CCJ's which i would like to have set aside.

 

At the time i did not know what i know now so *stupidly* accepted the debt and got a CCJ.

 

Details are as below :

 

1. Hillesden/DLC - CCJ. They have not complied with a s.78 CCA request in full, only sent a copy of the application form.

 

2. 1st Credit - CCJ and charging order. they have not complied with a s.78 CCA request at all. Not sent anything at all.

 

I want to fill a N244 form and state "i accepted the amount at the time but now do not do so" which i have read is a valid reason to have a CCJ set aside.

 

In defence i will state they have not provided any proof that they legally own the debt, the default notice sent to me (which they have not provided a copy of) contained the incorrect information as i am now aware that it included charges which are unlawful and therefore s.136 LoP 1925 has not been satisfied, thus the amount they asked for in judegment as also incorrect.

 

Or should i report them to my trading standards and let them deal with the s.78 non-comliance, and i can then use their reports in future when i do actually apply for a set aside?

 

My problem is that 1st Credit might go for a "Sale of Order" as they have a charging order while i am fighting against them, but how likely is this to be upheld as the debt is only around £4k with my property being worth a lot lot more.

 

Anyone help?

[rory32]

Tifo, Have you read this Removal of CCJ's - Step by step guide to the process

[tifo]

thanks rory,

 

I did have a look at that which is why i put the question, hence their No. 9 valid reason "Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?"

 

My problem is 1st Credit who i have to be careful with as they have a charging order.

[rory32]

I would pm Laiste. She may or may not answer you - but she is a lawyer and it sounds like you need some legal advice on this one rather than just a well intentioned opinion.

[tifo]

i know Laiste's opinion on this, from other threads, which is basically 'tough, ignorance of your rights is no defence and you should have known this before and disputed the account before the CCJ'.

[rory32]

Ah, not helpful then.

 

I take it you have looked into charging orders and the reasons why a judge would not allow a creditor to sell your house?

[tifo]

not really in depth.

 

a charging order for £4k is unusual anyway, plus no judge is going to throw out a family with kids for that amount.

 

1st credit conned me at court and i also got a judge with a total lack of understanding on what i was saying.

 

to be short, the agenda for the hearing was discuss my payment proposal first then the charging order. As i started talking a proposal, their rep immediately stated he was not there for the payment proposal but only the charging order, so the judge said OK, fine, since we can't discuss that then charging order granted.

 

prior to this, 1st credit had stated they would accept my proposal only after they got a charge. After the charge they refused to and asked for too much. After a while they stopped replying to my letters so its been a year and i do not pay them anything.

 

since Feb, they've been in default of and offenced on my s.78 CCA request and not sent a single sheet of paper.

[rory32]

I assume they got a charging order absolute, even though you have other creditors? Did the court apply conditions e.g. 1st credit couldn't sell the property until your kids were 18? Is the the property in joint names?

 

The court can order a sale where:

• the debt is in your sole name and you are the sole owner; or
  
• the debt is in both names of the joint owners of the house;
  
• if the debt is in your sole name and the house is in joint names, the creditor gets an 'interest' in the house once the charging order is made final. This means the creditor can apply to the court for an order for sale to realise their 'interest' in your house. All joint owners (or a married person who is not a joint owner but has an 'interest' in the property) should be part of the court proceedings so they can explain their case to the court as well. They should be sent notice of the hearing and be allowed to attend.

At the hearing the court must look at the following points.

• Is there enough equity in the house to cover any mortgages and the charging order debt?
  
• When you bought the house what did you buy it for? Is it intended as a long-term family home? Is it imagined that an elderly person will live there for their lifetime?
  
• Welfare of any children should especially be taken into account. Are there special factors such as age, disability or illness? There may be a need for stability at school. The effect on the children of moving house should be considered.
  
• If the debt is in your sole name, argue that it is not fair for the whole family to lose their home because of a debt belonging to one person.

The court should look at whether the interests of the creditors should outweigh the interests of the family. Argue that, under the Trusts of Land & Appointment of Trustees Act 1996, the court has discretion to say the family's interests outweigh the creditor's interests.

INFORMATION

You can still make an offer of payment at this stage and ask the court not to order a sale as long as you keep up with the payments. You can ask the court to adjourn the order for sale proceedings, or to suspend the order.

REMEMBER

It is very unusual for an order for sale to be made. If your creditor is threatening to have your house sold, you will need specialised legal advice. Phone us for advice.

Phone us for advice 0808 808 4000

 

 

PAYING OFF A CHARGING ORDER

 

If you pay off the amount you owe under the charging order, you can apply to the court for the order to be discharged. Ask the court for a certificate of satisfaction on your county court judgment and include evidence of payment. It is usual for creditors to inform the Land Registry that the interim and final charging order have been removed.

The Land Registry

For details of the District Land Registry that covers your area contact:

Land Registry Headquarters

32 Lincoln's Inn Fields

London

WC2A 3PH

Tel: 020 7917 8888

www.landregistry.gov.uk

You can also check details of charges on property online through the Land Registry website www.landregisteronline.gov.uk.

WARNING

The creditor may say there is interest on the county court judgment which is still outstanding. If the creditor disagrees that you have paid the charging order in full, phone us for advice.

If you have enough equity in your home, you can also pay off the charging order if you move house, as the charging order will automatically be paid off as part of the sale process.

Phone us for advice 0808 808 4000

 

 

From Nationaldebtline - you may want to phone them.

[babybear39]

tifo

 

Newbie here watching the threads...

 

I rang nationaldebtline foc when at the end of my tether and had the most incredible, understanding, non-judgemental, patient free service and am now dealing with all my creditors under the guidance given

 

They found me a haven of help and wealth of information here...

 

Please give them a try, it's well worth a litttle time spent discussing matters with very competant courtious staff who send you out all the info. needed ASAP.

 

Good luck and kindest wishes sent.

 

 

BB

[tifo]

thanks ...

• If the debt is in your sole name, argue that it is not fair for the whole family to lose their home because of a debt belonging to one person.

  The court should look at whether the interests of the creditors should outweigh the interests of the family. Argue that, under the Trusts of Land & Appointment of Trustees Act 1996, the court has discretion to say the family's interests outweigh the creditor's interests.

  This is useful ...

   

  i doubt they would try for an actual sale even though they send threatening letters.

   

  but i am being safe in any action i take as i don't want to upset the scales.

   

  my property has about £200,000 equity, so a judge is highly unlikely to order a sale for only £4,000.

   

  still, any action they take does not negate their offence under the CCA s.78 and it can be argued that since they have not shown any proof of owing the debt they had no legal right to the judgment and charging order anyway and have deceived the judge and myself into believing they did have.

[tifo]

1st Credit got a CCJ and a charging order on me last year using some of their trickery.

 

I sent a CCA s.78 request to them in Jan and they have not complied with a single thing.

 

I am now thinking of issuing a 'set aside' on the CCJ and charging order based around the fact that i now don't agree with the amount (it includes penalty charges so the CCJ is incorrect) plus the fact they haven't proven they own it. I will ask that all be set aside and they enforce only when they can show legal ownership.

 

I have issued a claim against the bank itself for a refund of charges which should come back to me and not go to 1st Credit as they are saying they've done.

 

I have read that "i agreed with the amount before but do not now" is a legitimate reason for a set aside, due to new information coming to light (charges).

 

Of course, i want to use their s.78 non-compliance for the set aside as well because they have not proven the ownership of the debt and are in default and offence of the CCA 1974.

 

Once the CCJ and charging order is set aside, they can try and enforce it again but only when they comply fully with s.78 and more. I know for sure that the bank does not have the credit agreement as it's from 1997 and they did not keep any from before when they took over the card in 2001 (Abbey credit card took over my MBNA in 2001).

 

This account will also have a s.85 non-compliance by the bank which i am about to issue soon.

 

Does anyone have any advice against this as some may say it's too late once i agreed to the amount last year?

[tooth_fairy]

Tifo

It is up to the judge whether you can be set aside, many judges may argue with you that you have left it too late to apply for a set aside, it is supposed to be done in a certain amount of time.

I'd pop along to your local county court and have a chat with one of the people behind the desk or your local CAB for more clarification on this issue.

TF x

[jackarl]

Hi all

Hope this goes to the right thread .

After arranging to pay all my creditors last year a minimum token payment with advice for the citizens advice bureau and have continued to do so .

I have now written to all my creditors with a new expenditure form and offer of payment but i dont know what to do with 1st credit.

The initial agreement was with the associates and to my dismay they had sold the debt to 1st credt who were initially harrassing me by telephone and using bullying tactics after i was paying the £1 a mth token payment had,t heard anything for a while.

I had a reply from them last week in response to my new offer i had also asked for the original credit agreement to be sent to me with a £5 cheque enclosed.

I rang after the letter i had received stated that they had done a serach on the land regsitry and were filing to get a charging order to impose a sale on the propert and i wanted to inform them the property was rented { so the serach was a lie}.the girl i spoke to said{ it was probably the search on your old property} ? and when i questioned about the oca {original credit agreement } and the fact this was not mentioned on the letter she said if i wanted that they would have to apply yo the original lender. then stated that they have not received a letter ????? the letter i received form them was in response to mine and they had also cashed the cheque??? where do i go from here ? does this mean they cannot chase me for the money if no oca???

 

awaiting any help

jackarl

[conar686]

Jackarl

 

I've just been contacted by this org under the same circumstances as you - they bought my debt off Nrthern Rock. I'm starting a thread 'as they seem particularly agressive' and I think i'll need some help in sorting them out.

 

MAC