SD Received today - hand delivered but dated last month! Help? ***WON***

[fdpm]

Hi

Don't want to take up too much time as this is my 2nd SD so will follow through the instructions kindly given last time which resulted in a set aside - but am slightly confused -

 

SD was hand delivered to my partner today but upon opening it this evening, discovered it is dated a full month earlier - can this be correct?

 

Just wonder if I have an extra reason for set aside here?

 

Have not received DN or letter before action so am sending off SAR tomorrow and will issue necessary forms before 18 days up but am bit worried about this date thing - is this th latest ploy used by the dcas?

[42man]

Hello FDPM, long time no speak, I'm sorry to hear that you have received another of these...is it from the same organisation as last time for exactly the same claim ?

[fdpm]

Hi 42Man, yes - I thought I had seen them all off! - No, this time it is from Hamptons Legal on behalf of Lowells - neither of whom I have heard of - they are claiming for 3 credit cards ! They hand delivered it to my partner yesterday in a plain white envelope - but upon opening it to read, it is all dated 20 December! I just wondered if this meant anything?

 

I am sending off SAR tomorrow and will do the N things as before - I'm not as green this time round having seen off Amex and BOS! Having said that, all comments - advice - etc gladly received as I believe it always helps others because we all have such different cases! For newbies looking for similar actions - this involves Barclaycard and one I don't even recognise - SAV Credit - a credit card I have never heard of and certainly never had!

[diddydicky]

it means that is was issued on 20 december - you will still have the statutory amount of time to defend it- as the process server will swear an affidavit as to the date he actually served it

 

if any of the debts are (genuinely) disputed and you have paper trails (and the disputes are not frivolous) then they cannot issue a SD for that debt

[fdpm]

Hi diddydicky - when you say (genuinely) disputed... what do you mean? IMO all of my debts are genuinely disputed - because as far as I know most of them have been written off by the original creditor and the DCAs are cherry picking the debts they think they have a chance of getting money from - I have no gainful employment due to having been unpaid carer for 2 elderly parents for the past three years, am slightly disabled and have no money. If these dirty trickster want to threaten me by subverting the proper channels for debt collection , I will fight with every breath in my body to ensure they lose. When I originally lost my job I made every effort to try and deal with these debts but was so shocked by the bad attitude and downright rudeness of the collectors that I started to read up on these forums to discover that half the ccs I had were incorrectly issued... furthermore, the DCAs lie, cheat and lie again with every letter they send...so, for me, its war!

[diddydicky]

what i meant was that

 

a/ someone suddenly decides to "invent a dispute " because they are served a SD or

 

b/ the "dispute " is not really a dispute about anything serious

 

 

if you have made a s77/79 request and the creditor has failed to comply - then he cannot enforce- including SD

 

if the you have disputed that the agreement is not properly executed or that they have unlawfully repudiated

 

etc

 

then- provided there is written evidence of a dispute you will be safe

 

a SD should ony be served in respect of an uncontested debt

 

but as it appears to have been properly served you need to deal with it

 

start by googling SD's and familiarise yourself with the possible defences then search out the threads on teh forum where others hav dealt with them

[fdpm]

Have sent off SAR today with £10 Postal Order - 2 of the accounts I am disputing because I do not believe they are enforceable due to irregular CCAs and the 3rd one I have never heard of? So, in the meantime will read up some more on dodgy DNs and other stuff and be ready to do more on this before 9th February.

[42man]

Give me a shout FDPM if you need any help......

[fdpm]

Have received letter in response to SAR from Lowells but they state only will provide docs relating to the original accounts purchase details and will not include info held by original creditors.

 

QUESTION: Should I request SARs from original creditors or just CCAs??

 

Also, and probably more important - the Account references quoted on the SD for the three original creditors do not match any of my original account numbers?

QUESTION: Do you think I could get the SD set aside for this alone seeing as the account numbers do not appear to be mine?

Edited January 30, 2011 by fdpm
misspell

[diddydicky]

both

 

and with luck you might find some discrepancies

 

( which is why policemen always interview joint suspects separately)- it is surprising how many times they will contradict each others testimony!!

[42man]

SAR to the alleged original creditors asap. And as for reasons to set aside, you simply have not had any kind of accounts under the ones mentioned on the demand.....along with no agreements, no default notices, etc etc....

[diddydicky]

bear in mind that the SAR can take 40 days and you dont have that long

[fdpm]

SAR to the alleged original creditors asap. And as for reasons to set aside, you simply have not had any kind of accounts under the ones mentioned on the demand.....along with no agreements, no default notices, etc etc....

 

Hi 42 Man - Should I use the phrase 'simply have not had any kind of accounts under the ones mentioned' or should I say "I have no record of the accounts mentioned" ???

[griffin036]

FDMP: SAV Credit took over Marbles Credit Card Services if that is of any help.

[fdpm]

Hi, This is the defence I am submitting for the SD - if one of you experts could take a quick look over I would be very grateful?

Thanks

The debt is totally disputed

The alleged creditor is claiming payment of three sums being the balance of monies due against different credit accounts numbered xxxxxxxxx, xxxxxx & xxxxx and I have no knowledge of any of these accounts.

The alleged creditor has provided no Default Notices in accordance with the Consumer Credit Act 1974 which states that in order for it to be valid; the Default Notice must be in the prescribed manner and be correct.

 

Notwithstanding the above, it is also drawn to the courts attention that no Default Notices required by s87 (1) Consumer Credit act 1974 have been attached to the petition.

It is denied that any Default Notices in the prescribed format were ever received and the Defendant puts the Claimant to strict proof that said documents in the prescribed format were delivered to the defendant

Notwithstanding the above points, I put the claimant to strict proof that any Default Notices sent to me were 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 any valid Default Notices, I suggest the claimant’s 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 an 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

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 also 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.”

 

The alleged creditor has not provided any legible copies of the agreements referred to in the demand.

I received a letter from the alleged creditor dated xxxxxxx in respect of a Data Subject Access Request in which they stated:

“We would like to clarify that the data you will be provided will only relate to the original accounts purchase details...” which infers they do not have any information held relating to the original accounts and therefore infer that they cannot supply me with a copy of any statements or agreements relating to the demand.

I believe there are no properly executed signed Consumer Credit Agreements. If they had been able to supply these agreements then they would have done so already in order to avoid slipping in default under section 78 (1) of the Consumer Credit Act

 

The defendant has not been provided with any statements for the duration of the alleged agreement (it not being uncommon that some debts are made up entirely of charges)

The Defendant denies that she is liable to the Claimant as alleged in the demand 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 ineffectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

I have never received any Notices of Assignment according in all respects with s136 of the Law of Property Act 1925

 

I respectfully submit to the court that steps to ensure service of a Notice of Assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

Since the claimant explicitly states the notices were “served” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

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.

 

It is noted that the claimant has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

I did not receive any Notices of Assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

To the best of my knowledge, any Notices of Assignment sent by registered post must, therefore have been returned to the respondent.

 

Consequently, I do not believe that any Notices of Assignment were properly served upon me at the date of the demand, and therefore any assignment has not been perfected in law.

 

I gracefully request -

The Judge dismisses the demand on the above evidence.

The Judge order the claimant to delete all adverse information held on my credit files.

The Judge orders the claimant to pay my full costs in light of the distress and damage to my family and to make an indemnity award

 

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).

I believe the facts herewith in this form are true.

 

 

[42man]

You might also state in the affadavit that the demand was received by you on the XXXX date and yet it was dated XXXX on the document....just in case the judge/court mentions the fact that you have filed 'late'.

[fdpm]

Hi

Am in court next week and now beginning to feel a little bit scared. After reading many more threads on here am now thinking I have done it all wrong.

My logic tells me not to worry as even if the judge thinks they have a case. all I would probably need to do is make an offer of £1 a week (is truly all I could afford) but my impending sense of doom head tells me they will make me bankrupt, I will lose my home and end up sleeping rough! I know it all seems crazy but I am scared and not sleeping very well.

I really hate all of this. I didn't deliberately set out to be in debt. I tried and managed for many years whilst working in a good job to pay all of my debts but after losing my job and moving to help look after my partner's parents, it all spiralled out of control. I wouldn't mind but when I add up the full amount of monies I paid to the credit card companies over the years in interest.... it makes me feel sick. Yes, ok I spent money on credit but only because we were all encouraged to take out the damn cards and they were all up for increasing our limits! Sorry. Rant over. I feel sick to my stomach.

[42man]

Just show your resolve, and show the judge how angry and upset you are at going through this. And if for any reason it isn't going your way then request FULL disclosure of all the documents. They may also want to 'talk' with you before the hearing...I suggest you just listen to what they are saying as they may try and hoodwink you....

[fdpm]

Just found out will have the same judge as before and he wasn't very nice... so now dreading next week!

[42man]

Don't be a soft target FDPM.....show how angry and upset you are at hacving this kind of action taken against you !!

[fdpm]

I hear you but still scared. Feel annoyed with myself for not demanding CCA earlier - but with all the problems we had last year with the paerents, I just never got around to it.

 

If the court finds in their favour - does anyone know what happens nex?

[42man]

If you do not get the set aside then they can petition for the bankruptcy (again you will get a chance to defend this)

[fdpm]

Big day tomorrow... frightened but keeping fingers and toes crossed they don't show up! Lots of prayers tonight please?

 

Will report back tomorrow...

[42man]

If they do turn up then they may want to have a chat with you before seeing the judge.....make sure you just listen to them !!. Don't forget to submit your costs so that they are in the court 24 hours before the hearing....be strong !!!

[cymruambyth]

Good luck