finding faulty cca agreements after a ccj??

[questioning]

any ideas on whether i should/have time to go for enforcement of 31.16 request made previously or should i defend on no agreement at all barring an unsigned, executed agreement..(this is the letter that they will most likely defend on -if solicitor was telling truth- came with couple statements and an 'executed agreement' blank, no sigs or anth else)

src="http://i615.photobucket.com/albums/tt231/robntanya/HFCnoagreementletter.jpg" border="0" alt="Photobucket">

 

 

As for time scale and enforcing the CPR 31.16 I really don't know, it must tell you this info on the CPR 31.16 thread though. I think you should definitely enforce the CPR 31.16 asap.

what you received following your 31.16 request obviously isn't good enough, (a blank agreement) the letter says....... they have sent this in accordance to section 77 of cca but your request was not a section 77 cca request was it. It was a CPR 31. 16 so as they sent only a blank agreement then perhaps that shows that is all they have, but at this stage we don't know for sure and you haven't taken the CPR 31.16 any further. You also haven't received the info from your SAR yet so......

this makes it a bit complicated as you did the SAR and sent the CPR 31.16 at the same time as applying for the set asides,

As this is to show a judge that you have a good shot at a defence I would defend on the blank agreement but point out you are waiting for the out come of your CPR.31.16 and ask that you amend the def. if any different docs to the ones already supplied turn up.

 

There you go thats the all I can think of, If you don't get any more replies flag you post #124 back up to see what the more knowledgeable people think.

I do feel you would be wise to have a thread for each case as this will get well complicated for people otherwise.

Edited April 10, 2009 by questioning

[r&b]

thanks Q,gd idea, i ll update the other thread when i get a min. I must say im inclined to defend what they have sent (blank CA) for the reasons u outline and for the other case, the judge asked the other side about their defence of the application form that they purported to be an agreement, so i think he would go on the same lines with this one, ie if thats what u sent in reply it must be what u consider to be a correct agreement. well thats how i took it anyway. i had the time issue with all this as is obvious, so thats why its all a bit rushed, but SAR went before 31.16, HFC just ignored both.i think i will enforce 31.16 anyway, if i do, can i state the a timeframe/case? i ve got to go thru the 31.16 threads n see how to enforce all this. under a pile of kids at the mom so back to it later....

[r&b]

could i get this moved to LEGAL please if possible..

[questioning]

posted in your mint thread instead. makes more sense there, sorry.

Edited April 11, 2009 by questioning
moved post to mint thread

[freakyleaky]

Thread moved to Legal issues.

[r&b]

thanks freaky

[questioning]

thanks Q,gd idea, i ll update the other thread when i get a min. I must say im inclined to defend what they have sent (blank CA) for the reasons u outline and for the other case, the judge asked the other side about their defence of the application form that they purported to be an agreement, so i think he would go on the same lines with this one, ie if thats what u sent in reply it must be what u consider to be a correct agreement. well thats how i took it anyway. i had the time issue with all this as is obvious, so thats why its all a bit rushed, but SAR went before 31.16, HFC just ignored both.i think i will enforce 31.16 anyway, if i do, can i state the a timeframe/case? i ve got to go thru the 31.16 threads n see how to enforce all this. under a pile of kids at the mom so back to it later....

 

Thanks for moving the thread Freaky,

 

R & B, After reading the 31.16 thread it is clear that you should give ample time for a reply to your request. 42 days I think it is altogether, 21 days for each letter, (please correct this if its wrong)

what ever the recommended time is It sounds like you could hit dodgy ground if you don't allow reasonable time for a response.

[r&b]

thanks Q, i havent been right thru yet, but yes i think it's goin to be prohibitive unless i can, belatedly, include it in DJs directions. i cant really leave 'reasonable' time if its gotta go thru the court system as well. one thing has just struck me tho, ive been reading through the 31.16 thread looking for clues and X20, in relation to smth else, states:

"[3] that the documents are only 'crucial' where the agreement is improperly executed. The debtor does not have a case of any description unless [1] the creditor volunteers an improperly executed agreement or [2] the court directs CPR 31.16 disclosure and [3] following the making of such an order, the creditor discloses an improperly executed agreement."

Now something that i didnt really see as significant at the time now rings in my ears a bit. their solicitor was very keen to ask if i could possibly have a copy of the agreement tucked in a cupboard, garage, loft etc????? their strategy must be based on NOT supplying any CA, save for the blank one, thus throwing the onus onto me, (which the sol also said) to prove the invalidity of an unknown document. mmm IF thats rite, how do u get out of that one? can i question the original judgement if there was no CA on which to enforce it or, which i favour, can i say that the blank executed agreement they sent must be what they enforced? as per my update from the hearing, their sol told me they wud go for compliance under reg 3 Consumer Credit (canc notices n copies of docs) regs 1983 as in their letter, in reply to my 77/78 rqst and put the onus on me to produce a defective CA.... ive asked myself a lot more questions than ive answered with this little exercise unfortunately, but i spose if i cud answer them id be charging myself £200/hr (and then taking myself to court when i couldnt pay myself.. sry my brain is cagnating, beer reqd)

[questioning]

thanks Q, i havent been right thru yet, but yes i think it's goin to be prohibitive unless i can, belatedly, include it in DJs directions. i cant really leave 'reasonable' time if its gotta go thru the court system as well. one thing has just struck me tho, ive been reading through the 31.16 thread looking for clues and X20, Yep, he plays a good devils advocate in the thread,in relation to smth else, states:

"[3] that the documents are only 'crucial' where the agreement is improperly executed. The debtor does not have a case of any description unless [1] the creditor volunteers an improperly executed agreement or [2] the court directs CPR 31.16 disclosure and [3] following the making of such an order, the creditor discloses an improperly executed agreement."

Now something that i didnt really see as significant at the time now rings in my ears a bit. their solicitor was very keen to ask if i could possibly have a copy of the agreement tucked in a cupboard, garage, loft etc????? Well have you?their strategy must be based on NOT supplying any CA, save for the blank one, thus throwing the onus onto me, (which the sol also said) to prove the invalidity of an unknown document. mmm IF thats rite, how do u get out of that one? Yep, this has been said by pt in the past, very difficult to prove that at the time of the CCJ "what state the docs were, and if they had docs or not" can i question the original judgement if there was no CA on which to enforce it or, which i favour, can i say that the blank executed agreement they sent must be what they enforced? You would have to go down this route I think, Didn't the judge say words to that effect or am I imagining it? as per my update from the hearing, their sol told me they wud go for compliance under reg 3 Consumer Credit (canc notices n copies of docs) regs 1983 as in their letter, in reply to my 77/78 rqst and put the onus on me to produce a defective CA.... ive asked myself a lot more questions than ive answered with this little exercise unfortunately, but i spose if i cud answer them id be charging myself £200/hr (and then taking myself to court when i couldnt pay myself.. LOL, sry my brain is cagnating, beer reqd)

 

Sorry i can't offer much help.

Anyone else got any opinions on the best way r & b should continue?

[r&b]

Q, i ve got to go back through my mountainous paperwork to see if i have several bits. the judge said that they would have to defend the agreement in the other case (mint version) this didnt get much of any airing as the CCA 1974 issues made it obvious he didnt have the immediate knowledge of the act so made his decision b4 we got to the hfc case.

does anyone have a view on the use of reg 3 Consumer Credit (canc notices n copies of docs) regs 1983 as their defence agst a proper true original agreement?

[caro]

If you aren't clear about how to proceed with the court, I suggest you phone them with your questions. Can you give a brief outline with bullet points giving progress to date with this.

 

There are several references to other threads here. Are they to do with this case or other ones?

[r&b]

thanks caro thats a gd idea i will call them. from another thread regarding the 31.16 issue ive been advised to apply for enforcment of the CCA rqst on N244, which i might be able to tie in with the 31.16 enforcement and have heard at the set aside hearing as well? any thoughts..

brief outline:

1. AUG08 CCJ awarded (admission of debt advised by CCCS)

2. OCT08 redermination for mthly paymt , uncontested on provision of CO.

3. DEC08 CCA rqst sent

4. JAN09 reply recvd 'without prejudice' (letter in this thread) stating cant get copy of CCA few statements and 'executed' agreement.

5. FEB09 SAR sent (no reply)

6. MAR09 applied for set aside

7. MAR09 sent 31.16 rqst (no reply)

8. MAR09 sent reminder for 31.16 rqst (no reply)

9. Mar09 letter recvd asking for ID for SAR.

10. APR09 set aside hearing, DJ asking for my full draft defence so he can presumably research the CCA1974 issues.

 

the other thread relates to another set aside running at the same time with MINT (both heard at same hearing, same solicitor, same outcome, there is a CA, albeit an application form in the MINT one so marginally diff)

 

thnks for any help

[r&b]

hhmmm...phoned the court to ask about how i go about gettin these docs under my 31.16 rqst, could i ask to add the request to judges directions or should i put in N244 to get them...answer: u need to get legal advice but whatever it is do it quick !! right in the absence of any diff advice i ll go with the N244 i guess.

[r&b]

i wonder if i may garner some help here? do the 21 days for my defence begin once i receive the paperwork for directions, or from the date of the hearing? can i change my defence if any applications (31.16/CCA compliance) are heard after my 21 days, if so how will this affect the other sides defence as they also have 21 days to reply? is there any way i can turn this to my advantage in court without having to actually see the docs, ie. i have made every effort but still nowt? as the original claim was at Northampton, they didnt need the docs with their claim, are there any ways to exploit this? basically, i need a method to attack a non existent agreement/a/c termination, etc !!!! any ideas pls?

[caro]

1. What exactly did the court order say?

 

2. What exactly does the claim say that you're defending?

 

3. You can apply to amend your defence if necessary, and it will be up to the judge whether or not to accept it. If new information comes to light it would seem a reasonable request IMO.

[r&b]

caro thanks for the reply, i havent had the order through yet, but i applied for a set aside of the CCJ which i admitted to on the original form and did not defend, which (set aside) was heard on 8th april.at the set aside, the judge said that he wanted to see a fully particularised draft defence from me and the same from the other side in reply, as he could not possibly go through all the issues of the consumer credit act 1974 that i had raised, there and then. the issue of the case as i see it, is that they are refusing to supply any documents at all despite my requests as above, and will most likely be using reg 3 Consumer Credit (canc notices n copies of docs) regs 1983 in their case, according to the agency solicitor anyway. my quandry is, do i attack the fact that there is no doc (does this leave me open to attack in that i can prove nth without an agreement or any other docs, or does it highlight that they should not have enforced? - for this set aside i mean), or do i push for disclosure (soon as poss) so that i can lay anything that comes up in front of the judge (they have admitted not being able to get a copy of the agreement in 'without prejudice' letter)? i hope this is clear and that u can see my difficulty here, which seems to revolve around timing issues. can/should i for example, apply for enforcement of 31.16 and paulwlton idea of CCA rqst on a N244 and specify the timing issues with regard to my defence?

[paulwlton]

Was the CCJ setaside on the 8th?

[r&b]

hi paul, thanks for looking in. no it wasnt, the judge said that he wanted to see a full draft defence from me and a reply from the other side so that he could have a look into the points of the CCA1974 that i was attacking their agreement with. i know its a bit confusing but i have 2 set asides going at the same time. i was attacking the RBS one (link attached, application form in place of agreement) when he just said that he couldnt look into the CCA1974 now so put the defence in and go from there. he said do the same for both cases.

link to RBS/MINT:

http://consumeractiongroup.co.uk/forums/showthread.php?p=2099152#post2099152

[paulwlton]

The judge has effectivley asked you to put a defence together for judgment to be set aside based on alleged breaches of the CCA

[r&b]

ok so how do i attack the fact that there is no agreement? as its a northampton bulk case so they didnt need to attach anth to the claim. my understanding is that they will basically put the onus on me to prove that the 'non' agreement is faulty and that i didnt receive any of the required docs: default notice, termination letter,LBA, etc.as its me bringing the set aside. there is also the issue of them hiding behind reg 3 Consumer Credit (canc notices n copies of docs) regs 1983, which is what the solicitor implied/told me they wud do? if it wasnt for the timeliness of the set aside issue, i would have taken the N244 to enforce the 31.16 rqst but i didnt think i had the luxury of time.

[paulwlton]

ok so how do i attack the fact that there is no agreement? as its a northampton bulk case so they didnt need to attach anth to the claim. my understanding is that they will basically put the onus on me to prove that the 'non' agreement is faulty and that i didnt receive any of the required docs: default notice, termination letter,LBA, etc.as its me bringing the set aside. there is also the issue of them hiding behind reg 3 Consumer Credit (canc notices n copies of docs) regs 1983, which is what the solicitor implied/told me they wud do? if it wasnt for the timeliness of the set aside issue, i would have taken the N244 to enforce the 31.16 rqst but i didnt think i had the luxury of time.

 

There is no agreement...only a recreation of what they believe to have been included in the original. Although a "true copy" provided in response to a cca request need not contain your signature, for the court to enforce there MUST be a document containing your sig.

[r&b]

thanks paul, i really appreciate your input here and im sorry if im driving u mad. how wud i challenge that enforcement in that case, in my set aside? it having gone through the bulk centre there was no need for docs on the POC? the bit im struggling with, is how do i put my case such that the judge cannot simply turn round and say well they ve got the CCJ and CO its up to u to prove they shouldnt have got it. to my mind i either need the agreement/docs to pick holes in or i need an admission that they have not got it/them, would u agree? they could turn round and say that ive failed to prove the invalidity of the documents cos i cant actually see them, and leave it to the lap of the gods (or how i put it in my defence) whether the judge actually grasps the point that they couldnt enforce without the original agreement/docs. even then if he decides that THIS case is abt my proving the docs invalid and not that they shouldnt have enforced in the first place am i not in trouble unless i can get the docs or the admission? im hoping for u to tell me that i should simply defend the fact that they have no docs. in which case i need to lock down completely a watertight argument in support.any ideas? i havent been able to find any info where set aside has been successful without any documents... thanks again and apologies for harping on.

[manchester1]

r&b , from my experiance of getting a ccj set aside, the onus is on them to provide a enforceable agreement ,and if they cannot provide a true copy of the said CCA then the judge should be motivated to set aside ccj. I think you should be working on argument to prove no docs.

 

Manc1

[r&b]

r&b , from my experiance of getting a ccj set aside, the onus is on them to provide a enforceable agreement ,and if they cannot provide a true copy of the said CCA then the judge should be motivated to set aside ccj. I think you should be working on argument to prove no docs.

 

Manc1

 

thanks manc, i ve dun pretty much all i can on that front apart from court action for the 31.16 (which i doubt i have time for). i guess thinking logically, that for 13.3 i have to show i have a credible defence, which in the absence of any agreement i do (sorry paul this is what u were pointing out last nite i take it...bit slow on the uptake).....this worries me tho: reg 3 Consumer Credit (canc notices n copies of docs) regs 1983.....have u come across this as an argument? ive read it but need to find out how to discredit it as a defence to no docs?

Edited April 16, 2009 by r&b

[r&b]

any views/links to this: "regulation 3 Consumer Credit (cancellation notices and copies of documentss) regulations 1983"? i cant seem to find it now..odd i know ive seen it somewhere...