unknown CL Finance Sainsbury Card CCJ registered 7th December - help o set aside ***WON They Discontinued**

[avarils]

Hello everyone,

 

My first post here and I was really hoping I could get some advice about a tricky situation I've discovered I'm in.

 

I've asked for a credit report on myself from Equifax as I was refused a car loan last week. I've discovered that I had a CCJ registered against me last month on the 8th.

 

The debt was for 5.5k and was for a credit card bill. My ex-wife unfortunately took advantage a nasty separation in 2005 and after discovering what she had done I kind of stuck my head in the sand. I ended up moving and this is the first I've heard of it since (through my credit report).

 

I didn' receive anything from the court at all so am puzzled as to how this has happened.

 

What do you think are my options? Should I appeal the CCJ and then dispute it with the solicitors who brought about the action? (how would I do this).

 

Should I ask for a copy of the original credit agreement and then come to some sort of payment plan? I know it's my responsibilty to sort out i'm just not sure of what my options are.

 

In this situation is the CCJ likely to be reversed?

 

Many thanks for any help I might receive.

 

Ryan

[supasnooper]

You can try to get the CCJ set aside.

 

This will cost you £75.00

 

I'll post more details on how you go about this later as i've got an appointment now.

 

Did you receive the CCJ summons ?

[palomino]

 

I didn' receive anything from the court at all so am puzzled as to how this has happened.

 

 

This sounds as though the credit card company don't have your current address. In such cases they will have sent the claim to your last-known [to them] address.

 

You can apply to the court to have the judgment set aside - but first you have to get a copy of the judgment. Ring the Northampton County Court Bulk Centre (which is where all default judgments come from) on 0845 408 5302 and ask for your case number. Just a thought, it might be on your credit report.

Then, complete a form N244 obtainable here - http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf and send it off to the court together with the £75 fee.[url=http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf][/url]

[avarils]

Thank you supasnooper , no I didnt receive the CCJ summons.

 

Thank you also palomino , yes the case number is on the credit report under court information. I will call the Northampton County Court Bulk Centre in the morning and get a copy of the judgement.

 

 

Ryan

[avarils]

Hello again,

 

Just an update.

I applied for the judgement to be set aside stating that I had not received the summons. I got a note back stating that it was being transfered to my local court and I should receive a letter from them with the date it was to be heard at.

I take it I will need to attend, and assuming it does get set aside, what do you think my next action should be?

Should I ask the solicitors for the original credit agreement or should I wait until they put another claim through? Is there anything else I should ask for?

Thanks

Ryan

[supasnooper]

Hi there,

 

I would advise one step at a time here.

 

Yes, it would be advanatageous if you attended the set-aside Court hearing.

[avarils]

Hello,

 

I have received a letter from my local county court.

It states:

 

Upon reading the papers in the case IT IS ORDERED THAT a hearing will take place on 24th June at 15:30 with a time estimate of 20 minutes.

 

Defendant to file and serve a draft defence 4 days prior to the hearing.

---------------------

 

I just called the court to ask what is required in the draft defence as I have already stated in my application to set aside the judgement that I did not receive the original summons, and the chap said to me I need to file a defence for my entire case (he did seem a bit unsure). Surely at this stage I'm just asking for it to be set aside?

 

What do I need to file and serve in terms of a defence?

 

Ryan

[avarils]

Hello again,

 

I have spoken to the court again (a different person this time) and have been told that the judge has asked for a defence of the case (not just information on my application to set aside the judgement). She told me that the judge may throw out my application if I do not provide this information 4 days before the hearing.

 

The problem I have is that I don't know if the credit agreement is enforceable as I have not got a copy of it. What is the best thing for me to do here? What can my defence be at this stage?

 

Any advice would be greatly appreciated..

 

Thanks

 

Ryan

[Spamalot]

Do you have a particulars of claim detailing everything about the case?

[avarils]

Hello,

 

It is a 5.5k debt to Sainsburys bank (credit card), taken out around 2003, defaulted 2006.

 

CL finance are dealing with the collection of it now.

 

The card was in my name only. I dont have the original agreement. I don't know what peperwork CL finance have.

 

I discoved I had a CCJ after applying for credit and have since then requested a copy of the judgement from the court and applied for it to be set aside (using N244).

[Spamalot]

Without a POC it's difficult to know what you need to defend and therefore you may have to submit an 'embarrased defence' .... I really am no expert in this matter and think that it might be worth 'hitting the red triangle' to get a response from the site team unless someone more knowledgeable comes along....sorry

 

Spam.

[Spamalot]

I have pm'd a cagger that is extremely good at this thing and who I hope will stop by soon.

 

Good luck.

[Spamalot]

Hi there,

 

The cagger I pm'd has gone off line...

 

I have found this, i'm not sure if it will be helpful but I hope so

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/204093-template-needed-embarassed-defence.html

 

Spam.

[nicklea]

Hi avarils, give me an hour or so and I'll do something for you

[nicklea]

ok, I'm running behind a bit - but I'll get it done for you by lunchtime. If you pm me your email address then I should be able to get it to you quicker as I can't access this site at work

[nicklea]

avarils,

 

I sent you an email with the defence and I've also put it up here as well. A lot of this is the work of IGNM:-

 

In the XXX COUNTY COURT

Claim number XXXXXX

Between:

 

Sainsburys Bank and/or CL Finance - Claimant

 

and

 

xxxxxx - Defendant

 

 

 

 

 

Defence

 

 

 

 

 

1. This defence is submitted following the order of District Judge xxxx dated xxx.

 

 

2. I am at a considerable disadvantage in preparing this defence in that I have not had sight of the Particulars of Claim so I do not know what has been alleged or claimed.

 

 

3. Further, since both Sainsburys Bank and CL Finance have contacted me with regard to the alleged agreement I do not know who the actual Claimant was in the case.

 

 

4. In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and Sainsburys Bank, secondly that such an agreement complied with the requirements of The Act (and all consequential regulations made thereunder) both at the date of inception and at all times thereafter. Thirdly it must establish that Sainsburys Bank complied with all of the provisions of the Consumer Credit Act 1974 (“the Act”) in that it must show that it served a proper default notice upon myself prior to terminating the agreement and prior to commencing proceedings. Fourthly, if the Claimant was not Sainsburys Bank then it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fifthly that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925. Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

 

 

5. It is submitted that it is the obligation of the Claimant to prove all of the above matters.

 

 

6. It is accepted that I applied for a credit card with Sainsburys Bank and that an Application Form was completed. It is not accepted that the Agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Act exists. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest.

 

 

7. In such eventuality the absence of a written agreement containing all of the prescribed terms is fatal to the claim and consequently, as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

 

8. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell [2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

9. Further, it is noted that the Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

 

 

Valid Default Notice

 

 

10. It is a condition precedent to the issue of Proceedings in respect of a Regulated agreement that certain steps prior to the issue of Proceedings must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the act.

 

 

11. It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof.

 

 

12. It is noted 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 (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339). It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is further laid down in the 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 2006 (SI 2006/3094).

 

 

13. The Act also sets out via Section 88 that the Default Notice must be in the prescribed form and must allow the required time from date of service. The use of the word “must” indicates that this is mandatory and that it cannot be dismissed as a de minimus issue.

 

 

14. The Law in respect of service is governed by the Section 7 of the Interpretation Act 1978 which indicates that service is deemed to be effectual on the day upon which the letter would be delivered in the usual course of business.

 

 

15. I refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting.

16. I further refer to CPR Part 6.26 Service of Documents which concurs with the above practice direction that the deemed date of service by first class post occurs:-

 

 

“The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.”

 

 

17. The importance of CPR Part 6 and the Interpretation Act 1978 in determining the delivery of documents by ordinary post is further confirmed by the following Court of Appeal Case Consignia Plc v Sealy [2002] EWCA Civ 878 (19 June 2002).

 

 

18. For the avoidance of any doubt, in the event of an alleged breach by the Debtor this is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

 

The Assignment of the Debt

 

 

19. If the Claimant was not Sainsburys Bank then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

Sums Claimed

 

 

26. It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

 

 

27. Further, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred and so are in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”)

 

 

 

28. In case the Claimant should attempt to justify the charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did not state or give guidance that a level of £12 was fair; neither did it recommend this figure in any way, it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5).

 

 

29. In case the Claimant included a claim for interest which is pleaded pursuant to section 69 of the County Courts Act 1984. The Claim for interest pursuant to the County Courts Act is by virtue of County Courts (Interest on Judgment Debts) Order 1991 is denied. Paragraph 2 (3)(a) of the Order states that Interest shall not be payable under this Order where the relevant judgement is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974.

 

 

30. In case the Claimant also claims interest from judgement date until payment. It is not admitted that there are any contractual terms that allow the Claimant to claim this or any interest after judgement.

 

 

31. It is denied (if it be alleged) that the Defendant is seeking to find “technical loopholes” to avoid alleged liability to the Claimant. on the contrary, in the cases and authority quoted within this defence, it has been confirmed that a lender who wishes to enforce a term of it’s contract before the court should first make sure that the contract strictly complies with the requirements of the law – in this case the Consumer Credit Act 1974 and associated Regulations.

 

 

32. In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all.

 

Statement of Truth

 

I, xxxxx, Defendant believe that the facts stated in this Defence are true

 

 

Signed ....................................

 

Dated: th June 2009

Edited June 17, 2009 by nicklea
made a mistake - see amendment in red

[Spamalot]

Thanks for your help Nicklea, I was well out of my depth!

 

Good luck Avrils.

 

Spam.

[avarils]

Thank you all for all of your help, it is amazing that there are people out there willing to dedicate large parts of their day helping strangers. I really do appreciate it.

 

Thank you.

[avarils]

Hi,

 

I thought I'd update you with what happened last week. I attended the hearing, CL finance did not. After a few brief questions the judge ruled for the judgement to be set aside, he has given me 14 days to submit a 'defence'.

 

Nicklea, the judge commented on the quality of my draft defence and even suggested I re-submit it as my defence removing the word 'draft'. He did advise me to fully read and understand each paragraph as it would be likely that I would be asked questions around it (I've already done this).

 

Apart from re-submitting this defence, are there any other steps I can take now?

 

Thanks again for all of your help.

 

Ryan

[Spamalot]

No advice... just congratulations...

 

Spam.

[avarils]

Good morning,

 

I have received the allocation questionnaire.

 

I'm unsure about a couple of questions:

 

Do I want to attempt to settle the claim before the hearing?

 

If yes do I want a one month stay? (I've sent them an SAR which, if we delayed for a month, I will receive)

 

Have I complied with the pre-action protocols?

 

Which track to I consider most appropriate? (the claim is for 5.5k, so is the small claims track not an option for me at all?)

 

Have I attached a fee for filing this AQ? (what is the fee?)

 

Any help with these would be really appreciated!

 

Thanks

 

Ryan

[avarils]

Hi,

 

I SAR'd Sainsbury's and have received a huge amount of information back. This includes a credit agreement which seems to include all the prescribed terms. Lots of screen print outs from various debt collection agencies and internal departments. I cannot however find any letters releating to a default notice. Is this good news?

 

The situation with the court case (I spoke to the court this morning) is that they have received both mine and the claimant's AQ's but there is a backlog of cases and the judge will not look at this until around next week.

[Spamalot]

I cannot however find any letters releating to a default notice. Is this good news?

 

If you have never received a default notice and they have no record of sending one either then yes... it is good news..They have not complied with the consumer credit act 1974 in giving you 14 clear days to settle the arrears before terminating the agreement.

 

Spam.

[avarils]

Hello

 

Is this agreement enforceable?

From what I have read on this site, I think there are two issues with it. Firstly although it has a signature, I did not write my name.

 

Also, it seems as though they have 'bundled' the loan amount and the charge for PPI together, charging me interest on both.

 

Am I right?

 

Ryan

loan agreement.PDF

[avarils]

bump