DCA said they will cancel the stat demand...

[BritishLion]

Hi guys

 

Basiclly received a Stat Demand last year which we applied to have set a side on the grounds that there was no paperwork at all for this account /overdraft, and that it was being paid every month via a debt management plan while we look into the legality of the debt, although we do not admit to the debt.

 

The judge granted a bit more time for the creditor to come up with proof

(which they still have not) and even though its a overdraft I issued a SAR

and a CCA request, they failed to comply with the CCA/SAR request and so I issued them a default notice for no complicence with a CCA.However I am aware some people say CCA's are valid for Overdrafts, some say not, no one seems to know and they thread entitled the last word on CCA's/overdrafts, offers the same 50/50 view.

 

We have sent all this info to the court, as a new date is through for next month, however the creditor now says they will set a side the stat demand if we continue to pay them via the Debt management plan, thought only a judge could do this?

 

As nice as it would be to have this set aside by them, would you agree to this or let the court handle? it as I have followed all the correct procedures to make this legally unenforceable.

 

The DCA issued the stat demand and said they would provide all paperwork, which they have not, they just said its a bank account and the date we opened it. It was a joint account and they are claiming in one name only.

 

However we issued SAR and CCA and CCA default to the original creditor, we got the letter from the DCA saying they will set it aside if we continue to pay 2 days after we told the original creditor they were in default of CCA request.

 

Any advice please?

 

Thanks

BL

[42man]

BL....the CCA is not relevant for the overdraft......however if they failed to comply with a Subject Access Request within 40 days, you should tell the judge this, and then take them to court, where you will be awarded compensation - have a look here - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/178660-blackheath-loans.html

 

If the stat demand was issued by a debt collection agency did you ever see a valid notice of assignment ?

 

If it is for a overdraft, then it is highly likely that there are a substantial amount of charges that have been added to the account (which may well bring it under the £750 threshold for insolvencies)....AND it is not unusual for some debts to be made up entirely of excessive penalty charges

 

If it was an overdraft then a valid default notice should be provided

 

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 demand.
  

• 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

[42man]

You can also tell the judge that you are going to commence legal proceedings against the original creditor as they have failed to provide ANY response to your section 7 data request. This has seriously hampered your efforts to get to the bottom of this....I would get a sheet of paper headed LITIGANT IN PERSON COSTS and claim your costs (especially as they have failed in the the courts order to get more paperwork...)

 

You can claim £9.25 per hour - so for example 20 hours of research into the Consumer Credit Law / Insolvency Act

Parking

Mileage at 40p per mile

Childcare costs

And in light of the upset and inconvenience this has caused you and your family ask the judge for an indemnity award quoting this High Court Case

 

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).

 

And if you are making repayments and they issued a stat demand then read this from Gareth Thomas (Undersec Of State For Trade And Consumer Affairs)

 

"Debt collectors who issue stat demands without giving debtors reasonable opportunities to agree a repayment schedule are likely to be in breach of the OFT's debt collection guidance. This guidance outlines the type of business practice that the OFT consider unfair and therefore incompatible with fitness to hold a consumer credit licence.

 

In addition to this, the government has recently strengthened the OFT regime to give them greater powers to investigate and take action against unscrupulous or incompetent firms. The OFT will be targetting its monitoring and scrutiny activities on debt collectors"

[BritishLion]

Thanks for the above guys, I never received a default notice with my stat demand and there was only 1 amount on the stat demand no breakdown of charges etc. although this debt is a overdraft, and for a few thousand I feel it is mostly charges, and because no one is sending me account details or statements I can not yet provide proof of this. Surely they are legally required to provide proof I owe this debt, where by I am not legally required to provide proof I do not owe this debt?.

 

Making a payment to a creditor in many via a debt management plan surely is not proof alone that I admit the debt, as I have never checked any of the creditors in there, it was to stressfull i just let the DMP handle it all, I have only just come to terms with it all and started to go through each one, one by one

[42man]

Then you tell the judge that you are 99% sure that the debt is made up entirely of excessive penalty charges, and you believe because no paperwork have been provided they know this is true too !!! Please do mention the SAR non compliance as well....ASK FOR YOUR COSTS TOO !!! You have done everything reasonable to get more information too !!! it seems they are being obstructive....

 

Get the judge to remove any adverse default information that the Debt Collection Agency has registered too...

 

Is this Capquest ? 1st Credit ? Red ?

[42man]

I'd be spitting blood to be honest.....and you can show the judge just how angry you are at this whole situation....it is an abuse of the Insolvency Service....

[42man]

You can also state that it is likely that they owe you more than you owe them.....(don't forget the 8% compounded interest you can claim too !!!)

[42man]

This should have been thrown out at the first hearing.....

[BritishLion]

Thanks 42man, I am raging about this but I have to keep my cool and do it with paperwork and the legal way, I was originally tempted to get some of the boxers and weightlifter mates from the gym I go to and go down there for some stress release but that would have made it legally worse although would have made me feel 100 times better as thats what they need

[42man]

Have a read here regarding costs....fax them through to the court 24 hours before the next hearing date OR at least post them so they arrive 24 hours before the hearing....this should help you on costs - http://www.consumeractiongroup.co.uk/forum/legal-issues/174577-capquest-statuatory-demand-threat.html

[BritishLion]

Once this joke of a stat demand has been set a side/cancelled, can they just issue another one further down the line? all takes time and hassle to sort.

[BritishLion]

sorry forgot to mention the DCA its the amazing Mortimer Clarke/marlin/potomac cow shed operation or whatever thy call themselves.

 

The only evidence they have submitted to the court showing we owe this debt, is a list of transactions our debt managment plan has been paying them without fail for over 12 months, surely they shot themselves in the foot showing the court this? as a Stat Demand should not be issued if a payment plan is in place?

[42man]

Correct, but it may not be enough to set aside on its own though...you need a firm dispute too (which you have)....PLEASE report them to the OFT and Gareth Thomas (Undersec Of State For Trade And Consumer Affairs).

[BritishLion]

Excellent, how to I actually report them to OFT and the Gareth chap?. Thanks again for your help.

[42man]

BBC NEWS | Politics | Find Your MP | Harrow West | Gareth Thomas

 

Complaint form here - (ignore the organisation piece) - The Office of Fair Trading: Debt collection practices

[42man]

Don't agree to anything, and don't stand for any nonsense....you can tell the judge that you feel the claim is vexatious....tell him they have not complied with a section 7 data request (Subject Access Request) and that you will be pursuing this through the court, state that they actually owe you more than you owe them, and state that you believe they are being deliberately obstructive because of the charges AND the refusal to comply with your section 7 data request. To which they are OVER TIME in replying (a SAR has to be replied to in 40 days) show the judge your SAR too !!! GET THOSE COSTS and ask for the judge to consider making an indemnity award, and for the debt collection agency to remove all adverse default information on your credit files.....

[42man]

I do hope you will 'Fillet Their Donkey' BL.....please show some resolve in front of the judge ? Did the other side appear at the first hearing ?

[42man]

Is this 1st Credit ? Marlin ? Capquest ?

[BritishLion]

the DCA is the amazing Mortimer Clarke/marlin/potomac cow shed operation or whatever thy call themselves.

 

They did not go to the first hearing and they have sent a letter saying they won't be at the next one either. they have probably seen all my evidence and have **** themselves

Edited March 4, 2009 by BritishLion
added content

[42man]

be warned don't say too much as employees from those companies are watching now.....

[42man]

Explain to the judge all that has been covered here and take the paperwork to show him/her and request the judge order the other side to pay your costs....

[42man]

Any more news on this BL ?