finding faulty cca agreements after a ccj??

[r&b]

subsequent to my credit agreement request from hfc bank i have received a letter explaining that "HFC Bank has been unable to provide a photocopy of your original agreement.However, please note that in accordance with Regulation 3 of the Concumer Credit (Cancellations Notices and Copies of Documents) Regulations 1983 we provide a copy of the executed agreement that does not include information which is permitted to exclude such as the signatures and signature box.",or in english a blank credit agreement, plus statement of account for a marbles loan dating back to dec04.it also states that because i have made regular payments in the past they deem it reasonable that i acknowledge the debt. i have already been taken to court and had a ccj granted agst me with £5/mth instalments and a charging order for around £17k ( the original loan was for £20k and last balance on the statements is just under £13k in jun 08 ) on my house as i had no idea about contesting credit agreements. can anyone tell me if i can challenge the court action on the basis of their failure to have a proper credit agreement or is it too late and if so how do i go about it? the account appears to have been passed to restons solicitors in jun 08.

i have also tried the retrospective credit agreement route regarding two other ccj s with northern rock and bk of scotland ( both of which also have charging orders) but have had no response from either for way over the 30 days- all done properly £1 fee, recorded delivery, etc. do the rules still apply if a ccj is already in place or do i need to go down a different path here?

many thanks

Edited January 29, 2009 by r&b

[davey77]

As this matter pertains to charging orders and CCJs i am not the best person to offer info on those subjects. I'm sure someone will be along that knows more about that.

 

In reference to being supplied an enforceable agreement, they may omit signatures in response to a CCA request under the Consumer Credit (Cancellations Notices and Copies of Documents) Regulations 1983, although that would not mean an enforceable agreement. They would (should) need the signature document to enforce in Law and the fact HFC have replied straight off with references to what they can omit for an agreement sent to you suggests, initially, they don't currently have it to give you.

 

I lack the knowledge to tell you for certain that you can go back to the Court and ask what proof a creditor has (valid agreement) to get a charging order in the first place. I would hope that would be an option.

 

Hopefully others will be along to comment.

[dx100uk]

i seem to remember reading somewhere on here last year that it matters not, retrospectively, that there was no executable agreement subsequently found.

the judge would simply view it as you trying to avoid paying the debt, might be wrong .

you dont mention the start date of the loan nor when you last made a payment etc [thus p'haps ack'ing the debt] but i wonder if statute barring plays a part here?

 

dx

[r&b]

thanks for response. loan was first taken out in dec04 last paymt made jan08. i guess im gonna need some proper legal advice here am i?

[supasnooper]

You can apply for a set aside of a CCJ which will cost £75.

 

You would need to demonstrate a very good reason as to why you wish to do so ( no CCA or indeed an unenforceable CCA perhaps) and explain the elapsed time from the CCJ to the current date as to why you hadn't applied earlier. If you get a hearing it could be £75 well spent.

 

There are several cases of this happening on the forum so you'll have to search them out.

 

However, as dx100uk has pointed out, you may get a judge who will not allow a hearing for a set aside and it's £75 waved goodbye.

 

It's your decision. I would do some research before you decide.

 

Best Of Luck.

[davey77]

The National Debtline may also be of help. They gave some good advise to me a couple of times in the past:

 

National Debtline – Free, Confidential Debt Advice – Call 0808 808 4000

[supasnooper]

have a read of this as well -

 

National Debtline England & Wales | Debt Advice | Factsheet 12 How To Set Aside A Judgment In The County Court

[r&b]

thats great guys thanks for the help appreciate your time...wading through the site trying to find examples i can use....differing degrees of success by the sounds of it...

[r&b]

ive not received replies (over 30 days etc)to other cca requests too that haven t got to court stage yet, wot wud be next step there? ive actually got quite a lot of debt on cards and loans,etc. are generic responses usually enough for people to sort themselves out,or would it help to list the details here to get more specific answers? sorry if this is a ridiculous question. any responses gratefully received...

[davey77]

The thing to do is to start individual threads according to Creditor:

 

RBS in the RBS forum

Llloyds in the Lloyds forum etc

 

You will most likely get more individual attention pertaining to specific problems you encounter (and the most appropriate replies you should send back.)

 

Start with basic info, Account type, start date, amount owed. What action you have taken so far and what the replies/letters have generally contained.

 

Don't pile lots of accounts up in one thread like me. (Which is why my main thread has 1000 posts lol)

Gets confusing and people can't find things and we all have certain hatreds we reserve especially for certain financial organisations depending on how they have treated us

[r&b]

thanks for the advice davey i ll get onto to it soon as ....

[DocH]

ive not received replies (over 30 days etc)to other cca requests too that haven t got to court stage yet, wot wud be next step there? ive actually got quite a lot of debt on cards and loans,etc. are generic responses usually enough for people to sort themselves out,or would it help to list the details here to get more specific answers? sorry if this is a ridiculous question. any responses gratefully received...

 

Well you could send the 'account in dispute' letter to those companies who have not yet supplied a copy of your CCA and where there is no CCJ in force:

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your letter dated ??/??/??, the contents of which are noted

 

You attention is drawn to the fact that this account is subject to a serious dispute. On ??/??/?? I requested ********supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ******** have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or *******, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) 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 or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

 

 

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ********* become compliant with my request. As ****** are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ??/??/?? be removed from the account and further charges cease until such time as ******* comply fully with my original request or such time as a court makes an enforcement order
  
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company cease with immediate effect until ******** comply with my request from ??/??/?? or such time as a court makes an enforcement order
  

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of receipt of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well.

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful.

 

I look forward to your due diligence in this matter.

 

Yours faithfully

 

[PRINT NAME] Don't sign

 

Send by a least Recorded Delivery.

 

Alternatively, you can sit back and do nothing, these companies are fully aware (allegedly) of the requirements of the Act. The choice is yours.

[r&b]

Doch much appreciated sending em off soon as i can get enough snow off my drive !!!!!!

another question: do i send the subject access request next and is to the same places or does that need to be the head office of the original institutional lender? sorry if im a bit geen on these matters....

[DocH]

Yep you could send them SARs as well. These go to the 'Registered' address of the financial institutions. This link will give you the correct addresses:

 

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/31052-contact-details-banks.html#content_start

 

We were all a little bit green when we started along this particular path ;-) You'll be surprised how quickly you learn tho' and become a seasoned campaigner.

[r&b]

thanks doc appreciate it......

anyone got a concrete answer to the cca after ccj issue please, if its try n get a set aside how do i piece together a case so a judge will consider it ?

[supasnooper]

As I've said earlier - it's your call on whether to apply for the set aside of the CCJ.

 

It's your £75 on the line here.

Do HFC definitely NOT have an enforceable agreement ?

Do you have valid reasons for applying for a set aside ?

Will a judge allow the set aside application being mindful of the time lapsed ?

Do you have the knowledge of the required laws to demonstrate and argue the points in court ?

 

I'm not trying to dissuade you at all - what I wish you to understand is that you will have to make the decision on what knowledge you have.

 

If you are confident you are positive on all fronts, then yes, go for the set aside.

 

I'm sure others will be along to offer their advice shortly.

[r&b]

as i ve got to grips with photobucket i thought i d throw this up again..from other threads i understand that the "without prejudice" bit is significant so should i issue a CPR or SAR request to see if they really dont have the required documentation? Also for set aside,do i just need to send in the n244 form?

ive also not had any reply to 2 other cca requests that have ccjs (nth rock/halifax) and charging orders in place. would you suggest more letters threatening set aside action or again do i need to send CPR/SAR requests. are they legally bound in the same way as before any court action to provide these details ?

many thanks for any help

Edited February 14, 2009 by r&b

[DocH]

Also for set aside,do i just need to send in the n244 form?

 

Three questions for you: Did you ever file an Acknowledgement of Service? Did you ever file a Defence? Was the case ever transferred to your local court?

 

Have a look at the CPR Part 12, in particular 12.1:

 

PART 12 - DEFAULT JUDGMENT

 

Then take a look at CPR Part 13, in particular 13.2:

 

PART 13 - SETTING ASIDE OR VARYING DEFAULT JUDGMENT

 

HFC Bank has been unable to provide a photocopy of your original agreement.However, please note that in accordance with Regulation 3 of the Concumer Credit (Cancellations Notices and Copies of Documents) Regulations 1983 we provide a copy of the executed agreement that does not include information which is permitted to exclude such as the signatures and signature box.

 

Whilst the above is sufficient to meet a CCA request, it won't do for a case being taken to court. Practice Direction 16 para 7.3(1) requires that the original should be available at the hearing.

 

Yes, just send in a form N244 (we can help you fill it in) and you can download a copy from here:

 

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForms.do;jsessionid=3128D845AA1A60385FADAE644CE598F6

[r&b]

hi doch thanks for the help...

1)as i remember i did send an acknowledgement of service back on instructions from the CCCS with the admission of debt section as well...

2) i didnt file any defense just earnings etc..

3) no never transferred to local court , al done in telford.

 

the order is for £10k and payable at £16/mth.....i ve looked through my banking statements and there are no debits for £16/mth so i dont think ive paid any installments....does this have a bearing on any set aside ? ive had no reminders to that fact or any details for payment.

 

thanks again for your time

Edited February 22, 2009 by r&b

[DocH]

Ok, well as you will have read from the CPRs I gave you, a no to anyone of the three questions I posed provides sufficient grounds to have the judgement set aside. CPR5 13.2 is emphatic on two or those three points:

 

The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because –

 

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

 

I've emboldened the key word of must, this does not give the court a choice, and is not constrained by a time limit.

 

the order is for £10,675.75 and payable at £16/mth.....i ve looked through my banking statements and there are no debits for £16/mth so i dont think ive paid any installments....does this have a bearing on any set aside ? ive had no reminders to that fact or any details for payment.

 

It's not clear from your posts whether CCCS is managing the debts on your behalf? Could it be that this payment is among a total you pay to CCCS for disbursement to all your creditors?

[r&b]

No the CCCS only ever gave me advice as at the time i had insufficient funds to put together a payment plan so I can only assume I havent paid the court order at all.

How would you suggest I move on from here? Put together the N244 (which I would appreciate any help with) and send this to Telford along with an application to have any hearing transferred locally? Am I looking for the set aside on the grounds of the unenforcable CCA and that the previous advice I had was flawed (from CCCS) as I understand there can be time limits.... Ill have a good look at that N244 tomorrow as my brain wont work at the moment.

thanks again Doch

[DocH]

No the CCCS only ever gave me advice as at the time i had insufficient funds to put together a payment plan so I can only assume I havent paid the court order at all.

How would you suggest I move on from here? Put together the N244 (which I would appreciate any help with) and send this to Telford along with an application to have any hearing transferred locally? Am I looking for the set aside on the grounds of the unenforcable CCA and that the previous advice I had was flawed (from CCCS) as I understand there can be time limits.... Ill have a good look at that N244 tomorrow as my brain wont work at the moment.

thanks again Doch

 

Thanks for confirming that. Your grounds for getting the set aside are that you did not submit a defence to the claim. If you take a look at the links I provided earlier, there is not a time limit for this particular scenario as it falls within 13.2 of the CPR. Time limits are imposed on those cases falling within 13.3. The fact that you received poor advice from CCCS supports your case for a set aside.

 

You have to show the judge considering the set aside application, that you have a reasonable defence of the case against you. Lack of a Default Notice and an unenforceable agreement could be considered reasonable grounds.

[r&b]

ive sent SARs to all and sundry and im gonna go for set asides on these cases but if the ccj was not at my local court do i send the N244 set aside application to the original court or my local court with the relevent case numbers? quick reply would be appreciated so i can get them off first thing, but i ll phone the court in the mng if not many thanks anyway....

[r&b]

looking back through the paperwork ive found this ARREARS NOTICE sent on 13 NOV 2008. I have already a CCJ in Northampton CC on 28 July 2008 and subsequently had a charging order put on my house for this debt? The outstanding bal according to this arrears notice is about £13k the CCJ is for over £17k? Why would they send me an ARREARS NOTICE after the event of the CCJ and CHARGING ORDER (i dont think i have missed any payments under the CCJ) and is £4k not a tad excessive. As ive said above SAR has gone out but only recently. This was all done and dusted by the time I found out that someone with debts also had rights ( i.e. CAG). Any thoughts would be appreciated.

src="http://i615.photobucket.com/albums/tt231/robntanya/HFCarrearsnotice1.jpg" border="0" alt="Photobucket">

src="http://i615.photobucket.com/albums/tt231/robntanya/HFCarrearsnotice2.jpg" border="0" alt="Photobucket">

[paulwlton]

The bank will claim that you had an opportunity to defend the claim when it was issued and by attempting now to setaside should be viewed as an abuse of process. Any setaside application must be made promptly.