AA Credit Card debt sold to 1st credit - now claimform***Settled by Tomlin Order***

[Andyorch]

Its quite simple really...claimant issues claim...you defend submit defence...claim is allocated you get notice of allocation and directions/dates.

 

Claimant then decides to make application for Summary Judgment (Judgment without trial in effect) cant apply for this until a DQ is completed.

 

So you get further notice/ date and hearing (all in connection with the SJ hearing) and the hearing goes ahead...they win that's the end of it.... game over you get a CCJ!

 

If they fail you then follow the Notice of Allocation you received when you submitted your defence and DQ...claim proceeds to full trial.

 

 

Application for SJ is a short cut option that can be applied if the claimant feels your defence has no merit and the court will agree...that's why its vital to submit a WS in objection and convince the court it has got merit and you want to proceed to trial.

[dpac123]

I responded with a WS and summary judgement is booked for 25/11. I'm talking to them about a payment plan but they are playing hard ball with a payment plan that repays the whole amount + costs. What level should I pitch an offer in.

 

 

Also the following occur to me and I wonder if they have any merit:

 

 

The emphasis in Carey v HSBC on section 78 of the Consumer Credit Act 1974 appears to have obscured the duty of the Claimant to adhere to section 61 of the Consumer Credit Act 1974, which states that a regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor and by or on behalf of the creditor. The document must include the credit limit, the interest rate and details of how and when a debtor is to discharge his payment obligations. A failure to produce such a document could render the agreement irredeemably unenforceable.

 

 

Am I right in thinking they still need to come up with a signed copy of the credit agreement at some point to enforce the debt?

 

 

The letter of assignment comes from 1st Credit - shouldn't there be a deed of assignment or some kind of notification from the actual creditor.

 

 

Attached is the default notice they sent - I haven't blacked it out, this is exactly how it arrived. Is this valid, as we have no way of knowing if it was issued correctly or not?

 

 

Thanks, D

[Andyorch]

If its a pre April 2007 agreement then yes they need the original...reconstituted is only in response to a section 77/78/79 request not for enforcement purposes if pre 2007 or if the agreement was amended post 2007

[dpac123]

If its a pre April 2007 agreement then yes they need the original...reconstituted is only in response to a section 77/78/79 request not for enforcement purposes if pre 2007 or if the agreement was amended post 2007

 

This is 2008, does that mean recon is ok? Also the address on the recon is not my address when the agreement was taken out?

[Andyorch]

Then its invalid...because of the address:wink:

[dpac123]

Then its invalid...because of the address:wink:

 

Can they change it when it comes to light at the SJ hearing or do they get a second bite at the cherry?

[Andyorch]

Bit late to do anything during a hearing...providing you don't tip them off in the meantime.Gather your information from the CCA1974 and in particular reconstituted agreements and have it ready to drop the bombshell and have your research to back it up and correct the judge.(if required)

[dpac123]

 

Ok great. Can they go away, recreate another recon and come back at a later date?

[Andyorch]

It would be enough to avert the SJ...but then they could try to rectify if the claim proceeds to trial......so you need to keep that nugget close to your chest and use at and when when at the appropriate time.

[dpac123]

So if they amend the trial could go in their favour?

[Andyorch]

Unfortunately I cant crystal ball dpac..but as stated if you can overcome the Summary Judgment without revealing that flaw then obviously you could then use that point at trial.If you have to use it to stop SJ...then you would have to proceed to trial with the knowledge they may correct it.

 

Anything could happen along the way though...Judge may deny SJ and strike out the claim ....as stated crystal ball time.

[dpac123]

Ok thanks - is there any mileage in the fact that I only received a screenshot of an alleged default notice and a blanked out version as above? Surely if there are no details on it they can't prove that it was not defective or that it was even issued?

[Andyorch]

I very rarely argue default note issues dpac....clutching at straws defence.

[dpac123]

so even though they haven't issued a valid default notice, the judge would probably still rule in their favour? What about assignment? I receive a letter from them telling me the debt had been assigned but nothing from the original creditor to verify. Also, no sight of the deed of assignment...

[Andyorch]

Yes because they will probably have proof one was issued...which is all that is required..there is no requirement to retain hard copies and the only way you can argue it is if you have the original and the form and content are not valid.

 

It only requires one letter from either the assignee or the assignor re assignment...and they are not at liberty to disclose the deed...next?

[dpac123]

So if they issue a template default notice as per above with all personal details edited out, that counts as proof that one has been issued but if they issue one with incorrect details that prevents them from being able to enforce the debt until rectified?

[Andyorch]

No such thing as a reconstituted default notice..they will submit evidence form their logs that one was sent on xxxxxx subject to a default on xxxxxxxx.

 

Andy

[dpac123]

they have sent a screenshot showing one was sent but there is no actual default notice or evidence that it gave sufficient time - but this doesn't matter?

[Andyorch]

they have sent a screenshot showing one was sent but there is no actual default notice or evidence that it gave sufficient time - but this doesn't matter?

 

No...the CCA 1974 does not require the creditor to keep hard copies...as long as they can prove one was sent from a screen shot...then that will satisfy most Judges.

[dpac123]

I ended up agreeing to a Tomlin Order with the claimant in Nov 2014 on a reduced balance of £2,650 (including all costs) with payment at £26.50 per month. Payments are being made but I noticed a recent statement where the balance is £2,948 - I have sent them an email to find out why, when the balance should be around £2,000.

 

Could this potentially invalidate the Tomlin order, as they seem to have used the total debt + costs as their starting point, not the agreed reduction?

[Andyorch]

I would assume the statement is from the claimant and not the Solicitor you are making payments to ?

 

Thread title amended to reflect the outcome...and thanks for the eventual update:wink:

 

Andy

[dpac123]

Statement is from 1st Credit, the claimant. Does the wrong balance from outset (and the fact that they may be trying to pull a fast one) affect it?

[Andyorch]

No there not pulling a fast one......when you settle vis a Tomlin Order or Consent Order the payments are held by the Solicitor and so statements from the claimant will not reflect the true picture.

[dpac123]

Ok thanks - payments are going to 1st Credit not the solicitor

[Andyorch]

Ok thanks - payments are going to 1st Credit not the solicitor

 

Then you do have a problem....all Tomlin Orders that I have ever been involved in require payment to the Solicitor...and kept in their clients account.