Guidelines - Requests For An Original Agreement Under The Consumer Credit Act 1974

[Perseus]

A bank or a DCA can apply for a County Court Judgement without ever having provided proof of a True copy of the signed executed agreement.!!

If the creditor/dca apply for the ccj, and the debtor fails to defend or request a set aside in the allowed time period, the creditor/dca can apply for a judgement by default. The view is taken by the courts that if there is contention, the creditor/dca should be able to supply the supporting documentation - without the defence or contention the creditor/dca has nothing to prove. Guilty by absence of defence!

The CCJ then becomes proof of a debt which could/should have been challenged - Thats why the CCJ's are diffcult/near impossible to remove regardless of whether or not you request a CCA to confirm it's legitimacy.

 

The moral of the story is, if you are threatened or served CCJ papers, defend/contend/force the creditor to prove the debt. There are DCA's out there laughing at the judicial system, purely because it is so easy to serve a CCJ on the 'Last Known Address' for a client. Even if they are advised of the new address of a debtor, they can still 'Track and Trace' the last known info (correct or not), serve a CCJ, get judgement by default - all without the debtor knowing that it's going on. I know - my sister had this happen to her - and the court could do nothing, believing the DCA had taken all reasonable steps to prove the address of a 'Delinquent Account'.

 

Hope I haven't waffled too much.

 

Perseus

[Perseus]

Thanks for that. It makes sense. But I wonder if the courts would see it that way. As far as I can see not even Trading Standards seem to have much information or clout. Thanks again.

 

With Trading Standards, they seem reluctant to get involved in individual disputes, but once they receive enough complaints regarding a company on their patch, they'll start communications with them. OFT and even the FOS are a good bet, as immediately they begin their enquiries, it starts costing the company involved. So they start talking!

 

Failing that, the County Court is a good place to get things noticed, and with the right case/paperwork/support, there's no reason why you shouldn't achieve more, quicker and personally more gratifying.

 

[Perseus]

Please, someone correct me if I'm wrong.

 

When a creditor serves papers to enter a default, county court judgement - the defendant (debtor) should receive papers from the Creditor and court, offering the opportunity to defend or counter claim.

 

If no such defence/counterclaim is presented in time - (as debtors can against bank charge claims undefended) judgement can be applied for by default (not contested).

 

The county court judgement / default is then entered against the debtor.

the onus of proof is therefore removed as the debtor apparently is given the opportunity to defend and has declined.

 

Picking up on Belaflat's post - if the documents served in this process are never received by the debtor, the onus of proof is still required by the creditor to show the documents were served correctly, at the address of the debtor. The creditors have many tools availbale (electoral register, track and trace facilities, banking activity records etc) to confirm the address. If the debtor (say has moved and advised change of address) and the papers are not served - I understand it that a request for a set aside could certainly be heard and judged accordingly. It does depend on what steps you've taken to inform the DCA, and how you present to the court.

My sisters case was hard - the judge was not accomodating at all, and she didn't want to take an appeal any further for fear of adding costs.

 

Unfortunately, I have read so many posts recently, I'm wracking my brains to remember where I saw the supporting info for the above, if I find it - or someone could jump in - that would help!

 

Perseus

[Perseus]

Isn't an overdraft provided as a means of extending credit at an agreed APR when used?

[Perseus]

Georgie

 

You should reply back, strongly objecting to the fact the £1 statutory payment that was enclosed with a legal request, has now been mis-appropriated by them.

If they do not use the statutory fee for the purpose required under that request, you will be complaining to Trading Standards, OFT and a complaint to the Financial Ombudsman for misappropriation of funds (which falls under the Theft Act).

 

Also state that the original timescale applies, and they are now (or should be?) in default of this request.

 

A lot of banks try this one, then suddenly realise ' oh dear, we put it in the wrong place, we'll now do what you asked'...etc.

 

Perseus

Keep on 'em!

[Perseus]

If they cannot produce the CCA the debt still exists you know what you could afford to get the matter ended once and for all. You negotiate wiht whoever is chasing you.

 

Sorry to disagree with this Gizmo...

 

Not only are you then acknowledging liability for an unenforceable debt, you are volunteering a payment against a debt that (other than moral if this is of concern) whilst the creditor is in default of supplying the CCA, you have no legal obligation to do so.

As many have said here - morals are less than abundent when OC's or DCA's are hounding/ harassing / failing in their legal obligations. I personally would not advocate acknowledging or admitting liability in this scenario, and given the correct approach, could not be forced to do so without THEIR obligations being met.

Each to their own I suppose!

[Perseus]

ok, Barclays have now said that despite my letters they sent the account to RMA to recover the debt & as i am contesting it i need to seek my own legal advise, but they didnt know who i had to deal with (just a person from the BRU helpdesk) so im not sure what to do next, as RMA keep calling and after running round the houses looking for Linda @ Barclays.(no not the song ) they said its nothing to do with them.

 

the current situation is i have no written agreement as i was staff and they've agreed that, i wrote back regarding section 127 saying it was therefore unenforsable and to let RMA know, but they dont seem to want to and RMA wont stop as only a clear debt or Barclays can stop them.

As Joncris quoted earlier, have you checked your Terms & Conditions / employment contract to see if there is any mention of preferential staff finance schemes etc?

Unless it is covered under that, The original creditor and RMA are in breach of OFT664, CCA s77/78, breach of your principled rights from their disclosure to RMA (as no agreement exists expressly consenting to the sharing or disclosure of your personal data!)

Have you got it in writing that Barclays acknowledge no agreement exists?

Thats a good start....