Connaught v Mrs L - STATUTORY DEMAND HELP!

[42man]

Hi MrsL what you MUST do is write to the OFT outlining exactly what they have done.....I suggest that you get this latest demand set aside too....the judge WILL be LIVID, this is a vexatious and unlawful action by them, not only that but the last one was set aside, they are still in default of your request.....

[42man]

When was the last time you made a payment on this account ?

[MrsL]

Hi

 

Thank you for your reply. It was many, many years ago, I am certain it was over 6.

 

Do I send anything at all to 1st/Connaught or just contact my local court?

[42man]

No problem at all Mrs L.....how was the demand delivered ? post ?.....or did you have a process server deliver it ? If you have not made any payment for at least 6 years then you will need to submit forms 6.4 and 6.5 but have a read here - (one point needs amending - the LETTER BEFORE ACTION line needs deleting)....

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/164580-capquest-sd-please-help.html

 

May I ask did you set the first one aside ? I URGE you to report them to the OFT....

[42man]

If you need any help please shout...

[42man]

OK...first things first, you've got 18 days from the date of the service on you to set aside the demand....they are either incredibly silly to ignore the restrictions set by the OFT specifically on them or they are serious the reason why I state this is here - The Office of Fair Trading: OFT imposes requirements on 1st Credit over debt collection practices - this press release by the OFT will be something for you to show the judge when your demand is set aside.....

 

In the link above are the forms you will need 6.4 (set aside) and 6.5 (affadavit)

 

Also a couple of other things to note....when you try to phone Mr Silcock on the phone number given he is NEVER available.....

 

A statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of The insolvency Rules 1986.

 

This means that if the statutory demand doesn't give the name of a person you can speak to then it is not valid. If you try to contact the named person and they won’t put you through then it is also invalid - this is potentially an abuse of process....if you want to try and call him and write down the times and dates you call....

 

Also can you PM me the name of the court named on the demand....as some county courts do not handle bankruptcies....I will check for you...

 

Also do you have the name address of the process server - send me this by PM too

 

And here is another useful thread (please read this) - http://www.consumeractiongroup.co.uk/forum/legal-issues/219589-mbna-trying-make-me.html#post2438384

 

In your demand you will need to state that the alleged debt is barred by the Statute of Limitations Act 1980

 

And the fact that they have been in default for your request for a copy of your agreement since (date)....do you still have a copy of the letter ?

 

We'll work on the costs before the hearing, as you will have done a lot of research yourself too !!

Edited September 28, 2009 by 42man

[42man]

If this continues then I can only see 1st Credit obtaining a £50,000 fine or losing their licence or both !!

[MrsL]

Thank you so much.

 

The individual who served it, told me that he wasn't the company, he was just a collection agent and that I would need to contact the company, he couldn't work out if it was 1st or Connaught. His name, no address, is on the first page Mr J Bloggs *position: DCA

 

On the back, PART A

If you believe you have grounds etc - there is no name, just a phone number

 

Part B, for written communication

MR J BLOGGS, Connaught??!

 

They have been in default since August 07 and yes, I still have the letters

[42man]

Use this...for your 6.5 (but EDIT to suit)

 

The defendant totally disputes the debt.

 

The alleged creditor has provided no proof that the debt is barred by the Statute Of Limitations Act 1980

 

The alleged creditor has provided no consumer credit agreement with the prescribed terms and is in default of a request made on (date) under the Consumer Credit Act 1974

 

The alleged creditor has not provided any default notices in the prescribed form.

 

The alleged creditor has provided no statements for the duration of the account.

 

The alleged creditor has not provided any notices of assignment.

 

Under section 78 (1) of the Consumer Credit Act a formal written request for any true copies of signed consumer credit agreements was sent to 1st Credit/Connaught. via (guaranteed/recorded delivery) on the (insert the date on the recorded delivery slip here) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies) – to date they have not sent any copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

 

I believe there are no properly executed signed Consumer Credit Agreements (as the account does not exist),

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, 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,—

 

(a) the state of the account, and

 

(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.

 

The Consumer Credit Act in section 78(6) States that

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement;

 

It must also be noted that the agreement must contain the prescribed terms.

 

Consumer Credit Act

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

 

REFERENCE TO CASE LAW

 

• As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:
  

• 
  ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’
  

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the statutory demand was issued.

 

DEFAULT NOTICE

 

 

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• 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 a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

The defendant has attempted to contact the person named on the demand, however everytime I call this person I am denied access - I believe that this is an abuse of the process in line with rule 6.2 of the Insolvency Rules 1986

 

The defendant has been issued with a demand previously and believes that this is a frivolous attempt to scare me into paying and therefore an abuse of the Insolvency Service. I refer the judge to a recent restriction order placed on 1st Credit and it's subsidiary companies by the Office Of Fair Trading. The alleged claimant's action would also be considered an 'unfair' practice as laid out in CPUTR2008 in line with the Office Of Fair Tradings guidelines on debt collection.

 

I refer to:

 

Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

 

On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON.

 

As a lone parent/low income earner/low income family with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

 

[MrsL]

A small update. I have reported the matter to the OFT, by post and by email and have today had an email reply;

 

Consumer Credit Act 1974 (the Act)

Complaint Against: Connaught Collections UK Limited & 1st Credit Limited

Licence No: 371336, 474343

Thank you for your email received on 28 September 2009.

I am very sorry to hear about the difficulties you have been experiencing however, the OFT has no authority to become involved in disputes between consumers and traders and so we cannot offer you any direct help with the complaint or advise you directly in this matter. Our role is to protect the collective interests of consumers.

 

The above mentioned Act established a licensing system to protect the interests of consumers in the credit area. If a business wishes to undertake the collection of debts that arise from consumer credit agreements then the Act states that they are required to hold a consumer credit licence; this is issued by the OFT. The above traders hold consumer credit licences. Under the Act, the OFT has a duty to consider the fitness of all traders who hold consumer credit licences.

In considering fitness we take into account whether a business has engaged in improper business practices. Where we receive complaints about the business practices of licensees, we investigate them and where appropriate we take enforcement action; that action depends on the evidence and circumstances. Action the OFT can take includes revoking, refusing or suspending a licence; or placing conduct requirements on the licence of the company or business in question (failure to comply with a conduct requirement can result in a financial penalty being levied).

 

The OFT has issued guidance to consumer credit licence holders engaged in the debt collection industry. The guidance is intended to ensure that debt collectors treat debtors fairly. Non-compliance with this guidance will call into question the fitness of licence holders and applicants. You can view our guidance at: www.oft.gov.uk/advice_and_resources/resource_base/legal/cca/debt-collection

 

I have noted the details of your complaint, and we will consider this alongside any other complaints we have received with a view to any licensing action we may decide to take. If we do take any licensing action against these traders, it is likely that we would need to disclose your identity to these traders along with details of your complaint. I should therefore be grateful if you could sign the enclosed consent form and return it to me. Unfortunately, we cannot disclose any details about any action we may take, due to restrictions on the OFT relating to disclosure of information (Part 9 of the Enterprise Act 2002).

 

We note that your email raises concern in regard to credit agreement.

As you may know, s63 of the Act covers how and when lenders must provide consumers with a first (and where appropriate second) copy of a regulated agreement. It is clearly in the lender’s best interests to retain details of the original agreement and any subsequent variations or changes made to it, particularly as consumers can request a subsequent ‘true’ copy of most types of agreement under ss77 and 78 of the CCA (and on payment of the appropriate fee). There are rules about what is likely to constitute a ‘true copy’ under these sections of the Act. Further, if a consumer does make a valid request for a copy of their agreement under these provisions and the lender does not comply with the request the agreement may not be enforceable in the Courts, subject to any other mitigating factors.

 

Should you require specialist advice or assistance on the circumstances of your complaint (including in relation to the above provisions about copy requirements), you may wish to contact your local Citizens' Advice Bureau or seek advice direct from a legal adviser.

 

The Financial Ombudsman Service (FOS) can help with most complaints about consumer-credit products and services if the consumer has failed to satisfactorily resolve the matter directly with the financial institution itself. FOS can be contacted at: The Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall, London, E14 9SR; telephone number, 0845 080 1800, or www.financial-ombudsman.org.uk.

 

Thank you again for writing to us and bringing this matter to our attention.

Yours sincerely

[MrsL]

Hi there

 

I have received a letter this morning from Connaught, stating that they have formally withdrawn the SD served against me.

 

I had intended to take my papers to the court tomorrow to have it set aside, I've just called the court and they have said there is now nothing to have set aside as it's been withdrawn - this of course makes sense to me but I wanted to be 100% certain that I now do nothing?

 

The letter is a bit bonkers anyway, it says they note my request for CCA - er, nope, I asked for that in August 2007!!! It also says that 'no enforcement action shall be considered until the information is supplied'

 

Would really appreciate some advice!

Edited October 8, 2009 by MrsL

[42man]

Just as well they have (keep that letter).....they were hoping you wouldn't set aside and that you'd curl up in despair or suddenly pay up.....and yes DO REPORT THE UPDATE to the OFT....this evidently shows you how 'serious' they were (they obviously weren't !!).....I can only smell trouble for them, especially so with this in mind - The Office of Fair Trading: OFT imposes requirements on 1st Credit over debt collection practices

 

One of the restrictions placed on them was to stop sending stat demands where it is unlikely that proceedings will be initiated....I'd say that their actions against you are completely against this !!!