1st Credit - Stat Demand - Help Please **WON**

[goingdebtfree]

I am currently in dispute with 1st Credit and have a court apperance on XXXXX to set it aside.

 

I have CCA’d them, after receiving Statutory Demand.

 

I have acknowledged the SD have applied for it to be set aside and have completed forms 6.4 and 6.5 and done the necessary at the court with these.

 

I have a few questions.

 

My original reason to have it set aside was that I was paying them on DMP, regulary without fail.

 

1 ) If DCA do NOT provide necessary documents ( the CCA ) in time for court hearing, shall I state this when I appear in court, as well as my original reason ?? ( which was that I have in fact been making regular payments through a DMP ) ?

 

OR

 

Use the lack of the CCA as sole reason to have it set aside ??

 

Thanks to everyone for all your advice, I am new here, just want to kiss you all ! ! X x

[bladeboy]

Hi there,

 

My thread is just under yours with a similar title. I'm amazed that they SD'd you even though you're on a DMP. Unbelievable aren't they.

 

I'm preparing a formal complaint to the OFT re this firm and will make one through the FOS too. Copies will be sent to my local MP and Alistair Darling too.

 

Did you get the set aside hearing transfered to your local court?

 

How did you inform 1st crud where you wanted the hearing to be heard?

[42man]

You need a substantial reason/reasons to set aside.....

 

If it was me in your postition I wouldn't even mention the payment plan...if they have the temerity to send out a demand without having any paperwork to submit a proper claim, then I would use the arguments below...

 

As you have already sent your defence. The good news is that they are probably in default of your request for a CCA....(I presume you have the correct piece of the Consumer Credit Act 1974 to quote this to the judge just in case !!)

 

You can also tell the the judge that you have had no defaults in the prescribed format.

 

No notices of assignment

 

No statements for the duration of the contract (it not being uncommon that debts can be made up entirely of excessive penalty charges)

 

Don't forget to fax / send your costs in to the court 24 hours before the hearing - have a look here for help on costs - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/164223-capquest-stat-demand-bankruptcy.html

 

1st Credit in my experience never turn up in court, basically because they have to pay for their own solicitor and potentially pay for yours, they are hoping that you will be frightened into paying....but you should be showing the judge how disgusted you are at them using the Insolvency Service as a tool for collecting on disputed debts....you can be sure that when 1st Credit issued the demand they had NO agreement, no default notices, no statements etc....

 

Please have a look here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/

 

If you need any more try ringing Mr Silcock on the demand log the times and dates of your calls, you will NEVER get to speak to him....!!!

 

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.

[42man]

And Bladeboy's advice is spot on too....report them to TS, OFT, and your local MP !!!

[Lilythepink]

Just to let you know, I am a big further on, in the SD situation. Further to advice from everyone here, I got my court date, to set aside, and guess what, after I had CCA'd First Credit and Connaught Collections, Connaught sent me a letter saying that they would not be attending the court, and were letting me set aside the SD. They have closed my file and sent it back to the original creditor.

The CAG have advised to go and get costs, so with this group's help I now have the confidence to go to court this month, and claim my costs, as I did spend an awful long time researching it, carparking etc. Hope it works out for you???

[goingdebtfree]

Thanks for all the help and info...and so quick as well.

 

question for 42 man.....i dont understand, what you meant by...

 

As you have already sent your defence. The good news is that they are probably in default of your request for a CCA....(I presume you have the correct piece of the Consumer Credit Act 1974 to quote this to the judge just in case !!)

 

Are you talking about some kind of documenation I need to take in...or I am just quoting the above, sorry, a tad confused, any light on this would greatly appreciate.

 

Thanks Adam

[42man]

No problem GDF.....have you submitted your set aside papers and affadavit as yet ? what did you put on the affadavit ?

[42man]

Are you aware of the background to why you need to request a consumer credit agreement ?

[goingdebtfree]

Hi 42man

 

thanks for your response.....

 

I am aware of the need to request a CCA.....if they cannot provide one, my case is in dispute, after 12 + 2.... ???

 

I have already submiited my affidavit a few months ago......saying that I was on a DMP making regular payments.

 

I am trying to get my head around this, so much information.....

 

are they likely to set it aside ??, on the grounds of me being on a DMP??, as all my other creditors have ALL accepted my DMP proposal, apart from 1st credit.???

 

thanks Adam

[surfaceagentx20]

You say you submitted your application to set aside a few months ago? Have you not heard from the court since? If not, best to call the court and check out the current position.

 

Being on a DMP is not a legal reason to have the SD set aside. That said, I shouldn't be overly worried. In my view there's a good chance the creditor will not contest your application to set aside the SD assuming the court is willing for the application to go on. Unless you have equity in any property you own which is comparable to the extent of your liabilities, the creditor will not wish to stump up cash to petition for your bankruptcy petition and in doing so lose control of this debt collection to a trusteee in bankruptcy.

 

Let us know what you find out from the court.

 

x20

[42man]

Sound advice from Sax20....and you say you put in your affadavit and set aside a few months ago ? Ring the court ASAP and find out if anything has been done yet....

[goingdebtfree]

Sax20 & 42Man

 

phoned the courts on your advice, but the person who deals is out of office...till next week......will keep you updated nearer the time.

 

got to rest my head for a bit........so much info.....making my head bang.

 

but thanx to you guys, feel much more confident.

 

x x

[goingdebtfree]

Am starting to prepare papers for court appearance soon.

 

I have not rcd back a CCA after 12 + 2, is their a secondary letter to send out ? as a chaser ??? cannot seem to find one.....have been looking everywhere.

 

Thanks x

[42man]

Chaser letter here -

 

Send by recorded....and edit as required

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

[goingdebtfree]

Thanks 42man...you really are helpful. Have tickled you ! !

 

Off it goes today.

 

I have my court appearance in xx days.......are they likely to bail out now.....surely they would realise they are wasting their time ???

[goingdebtfree]

Hi 42man....

 

since sending in my 6.4 and 6.5 just yet...I have learnt so much from this site...re CCA and litigation.

 

With the court papers I am preparing, do I have to relate to the affadivit diectly, that is......mentioning my DMP as sole reason to get it set aside......or as mentioned above, not too mention it at all......??should I just try and get it set aside on

 

these reasons

 

Lack of CCA

 

You can also tell the the judge that you have had no defaults in the prescribed format.

 

No notices of assignment

 

No statements for the duration of the contract (it not being uncommon that debts can be made up entirely of excessive penalty charges)

 

Thanks

[42man]

If it was me I would avoid the DMP.....

[goingdebtfree]

Thanks 42man....and sorry to keep pestering you.......

 

just too clarify....I have NOT mentioned the below reasons AT ALL...in my affadivit....6.4 and 6.5............my question is do I need to inform the courts before my set aside day that my reasons have changed ( to that of below ), or just inform the judge on the day??....i am at the last hurdle and have carefully prepared my papers...and dont want to fluff up at all on the day...as i'm bricking it now.....

 

Lack of CCA

 

You can also tell the the judge that you have had no defaults in the prescribed format.

 

No notices of assignment

 

No statements for the duration of the contract (it not being uncommon that debts can be made up entirely of excessive penalty charges)

 

Thanks again.....

[goingdebtfree]

And should I S.A.R. them as well.....as not have done so already ???

[42man]

It might be a good idea to send a SAR request, (you should claim the £10 back on your costs) at least it will show the judge that you have attempted to find out more about the debt. Just be clear on what is being said about the agreement, the default, the statements (excessive charges).....and the accompanying high court case law too....

 

Use this SAR to the original creditor

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

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

3. Where there has been any 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 formerly held with ORIGINAL CREDITOR.

4. 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.

5. 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).

6. Details of any collection charges 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.

7. 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.

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

9. 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.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

 

 

Sign your name but put lots of crosses through it so it can't be 'lifted'

[42man]

It might even be worth sending the addiitional points of your defence to the courts too...(and to 1st Credit)......don't forget to submit your LITIGANT IN PERSON COSTS 24 hours before the hearing too...

[goingdebtfree]

SAR off tomorrow.....

 

Thanks 42man.......but do I need to notify the court before court appearance......that I wish to set aside on different terms to that as stated in my original affadivit??

 

Many thanks again......

[42man]

I would send the additional addendum to the affadavit to the courts, but you'll need to get it witnessed again...

[goingdebtfree]

Many Thanks 42Man......wouldnt know where I'd be without help from here.

 

I have my court case in xx days, and think I am prepared.....will let everyone know in a few days.

 

But for anyone just starting out on this road......its not that bad...just listen to these guys here, they are so nice and helpful, and read up and study past posts and cases, where you will find everything you need to build a case.

 

Hoping this will be a nice Chrimbo pressie....come xx days.....

[goingdebtfree]

********* SUCCESS *********

 

Hi all....just to let people know, I have just got back from court, and it was set-aside in minutes.

 

The judge was friendly as hell....not what I was expecting.

 

The other side didnt show.......no suprises there.

 

The knowledge I have gained through this website has been invaluable from your kind directions.

 

I did not get costs awarded, the judge said that would more likely to appeal. But this was besides the point....

 

To anyone reading the above....dont be intimidated by anyone who is hassling you.

 

Just a big thank you to all that have guided me over the last 2 months.

 

A big tip for anyone that is about to start proceedings, is read read read other stories. And do your research....all will be good.

 

This can be moved to the ****WON***** pile...YIPPEEE! ! ! ! !

 

WOW what a lovely christmas present.......

 

Merry Christmas to everyone....God bless you all.