Please Help!!!

colemnic · 10 July 2017 at 10:55AM

colemnic wrote: »

Hi lauded experts!!

I'm hoping you can help me with a credit card debt matter that I've been working on recently ... I had got advice from another forum but seems it's now closed even though the steps advised and taken had worked to date.
Here's a quick summary of what's happened ... now I really need help on what to do next!

1. 26/04/2017: received a N1SDT claim form from County Court Business Centre, Northampton which details the claimant as Hoist Portfolio Holding 2 Ltd and also Howard Cohen And Co, Leeds (assume solicitors).!
This is related to a debt for Barclaycard of £11k which was originally taken out approximately 3 or 4 years ago.
2. 04/05/2017: Acknowledge Service with intention to defend within 14 days
3. 04/05/2017: Sent CPR 31.14 to solicitors
4. 04/05/2017: Sent a request for a copy of the agreement under Section 77-79 of the Consumer Credit Act to the claimant
5. 25/05/2017: Defence Submitted & Received
6. 29/06/2017: DQ sent to me

Looking for any help people can give me here ... i'm spending so much time trying to read & understand what to do next but so much of it doesn't make sense!

sourcrates · 10 July 2017 at 11:25AM

Hi,

We move posts if we believe they will get a better response elsewhere, so i have posted your question in the general DFW forum.

thanks.

National_Debtline · 10 July 2017 at 12:31PM

Hi Colemnic,

The defence questionnaire asks if you would be would like the matter to go to mediation, rather than a defence hearing - this is of course up to you and it may be worth getting some legal advice to understand the implications of whether to use mediation or go for a full defence hearing straight away.

You have replied to the forms within the deadlines from the dates you gave, and I appreciate that you are asking the creditor for more details about the debt, however, what is unclear from your post is exactly what your defence would be? It is not to say you have done anything wrong in your request for more information, but if the creditor can provide what you have asked for, would you have any other grounds/ reason to challenge it? If the debt is only 3-4 years old there is no limitation issue.

If you haven't done so already, try and get some cheap or free legal advice about this issue. Good luck,

Laura
@natdebtline

colemnic · 10 July 2017 at 3:01PM

Hi Laura, thanks for your reply - great to engage with someone on this!

With the questionnaire, came a "notice of proposed allocation to the fast track" - do you have a view on what this means for me?
There are a number of questions on the "directions questionnaire" that I'm not sure how to respond - it also talks about attempting to agree directions with all other parties ... what is the expectation here?

I've not had any further correspondence from the claimant since making the requests noted above, which they replied to stating they have "placed my account on hold pending receipt of this documentation".

Overall, the advice I received is that I can defend this claim based on the fact it has been illegally assigned to the DCA ....

Clearly they don't have the documents , also mention in your defence that..
i) you have served a CCA request upon the claimant
ii) they are currently in default of your request
iii) The claimant has responded to this request by stating that they have requested a copy of any agreement to VERIFY that the defendant is in fact LIABLE :roll:
iv) the claimant should not have submitted a claim without being certain that the defendant was in fact LIABLE.

and finish your defence by stating that you, the defendant are at a distinct disadvantage in submitting this defence as you have received NO documentation from the claimant to prove their claim, therefore you reserve the right to amend your defence should the claimant produce any form of documentation to prove their claim.

sourcrates · 10 July 2017 at 3:19PM

Well actually all they have done is not produce any evidence of liability, which is quite common in a lot of cases.

They do this in the hope you wont bother defending the case.

The problem you may have is that all they need do to rectify the position, is provide you with a copy of a reconstituted credit agreement.

It ceased to be a criminal offence a few years ago the non compliance with a CCA request, and the selling of said debt to a DCA does not in itself require the original creditor to show proof of liability to that 3rd party, in order to sell it.

You may want to run your defense past Legal Beagles (address in my signature) see what they advise.

StopIt · 10 July 2017 at 3:20PM

colemnic wrote: »

Hi Laura, thanks for your reply - great to engage with someone on this!

With the questionnaire, came a "notice of proposed allocation to the fast track" - do you have a view on what this means for me?
Get to the CAB, or Legal Beagles website and Seek help on this one.
There are a number of questions on the "directions questionnaire" that I'm not sure how to respond - it also talks about attempting to agree directions with all other parties ... what is the expectation here?
This is why you need help from the CAB/Legal beagles. Bring them the questions and they'll help answer them.

I've not had any further correspondence from the claimant since making the requests noted above, which they replied to stating they have "placed my account on hold pending receipt of this documentation".
Standard Procedure, and if you defend the case on this basis the claim will be stayed until they do, or accept they can't find the CCA details.

Overall, the advice I received is that I can defend this claim based on the fact it has been illegally assigned to the DCA ....
Do not use this as a defence. It is a myth and does not work. When a DCA buys debts, they literally buy a file with names, account numbers and debts owed, nothing more. The details of the debts, CCA Agreements or account details are held by the original creditor only. The DCA SHOULD get the details of the account from the original creditor before sending a letter before action. However, because they're lazy, and the courts are lazy, many claims just go to court and because people put their head in the sand and do not reply, are landed with a CCJ by default.

However, no matter what you might read, that does not constitute a defence. So again, you've got grounds to defend this claim but this is not one of them.

Clearly they don't have the documents , also mention in your defence that..
i) you have served a CCA request upon the claimant Yep
ii) they are currently in default of your request Yep
iii) The claimant has responded to this request by stating that they have requested a copy of any agreement to VERIFY that the defendant is in fact LIABLE :roll: Yep
iv) the claimant should not have submitted a claim without being certain that the defendant was in fact LIABLE. Yes, but tenuous. Implying bad faith may backfire if the CCA request is fulfilled in future.

and finish your defence by stating that you, the defendant are at a distinct disadvantage in submitting this defence as you have received NO documentation from the claimant to prove their claim, therefore you reserve the right to amend your defence should the claimant produce any form of documentation to prove their claim.

The lack of proof of debt IS the defence. In fact, them not sending the documentation has handed you the advantage. However, because the debt is lower than 6 years old, if they come up with a CCA Agreement correctly proving the debt is owed by you, you will have no other defence.

Replies in Red. Definitely get legal advice ASAP however.

colemnic · 11 July 2017 at 12:47PM

StopIt wrote: »

Replies in Red. Definitely get legal advice ASAP however.

Thanks so much for this ... you mention "However, no matter what you might read, that does not constitute a defence. So again, you've got grounds to defend this claim but this is not one of them."

Can you explain a bit more on what my grounds to defend are, as you see them?

Thanks

StopIt · 11 July 2017 at 12:59PM

colemnic wrote: »

Thanks so much for this ... you mention "However, no matter what you might read, that does not constitute a defence. So again, you've got grounds to defend this claim but this is not one of them."

Can you explain a bit more on what my grounds to defend are, as you see them?

Thanks

Your current grounds to defend the claim is that they haven't proved the debt and haven't complied with a request to do so.

If they do, however, that negates that defence.

You cannot use the common but completely false defence that the DCA has obtained the debt illegally. They have not, and that defence will be thrown out, especially if/when the DCA obtains CCA data.

Your hope now is that the Original Creditor doesn't produce this CCA Agreement. If they do not, get them to call off the claim as otherwise the claim is stayed and can be re-started at any time.

If they do find the CCA Agreement, it'll likely be time to negotiate payment plans, which can be done via the courts.

sourcrates · 11 July 2017 at 1:02PM

colemnic wrote: »

Thanks so much for this ... you mention "However, no matter what you might read, that does not constitute a defence. So again, you've got grounds to defend this claim but this is not one of them."

Can you explain a bit more on what my grounds to defend are, as you see them?

Thanks

Your defence would be non compliance with your CCA request.

The creditor must prove there claim and produce evidence when asked.

Although as stop it mentioned, if they do comply and provide the evidence, your defence goes out of the window.

colemnic · 11 July 2017 at 1:26PM

sourcrates wrote: »

Your defence would be non compliance with your CCA request.

The creditor must prove there claim and produce evidence when asked.

Although as stop it mentioned, if they do comply and provide the evidence, your defence goes out of the window.

Thanks both ... what would your recommended action be at this point?

StopIt · 11 July 2017 at 2:10PM

colemnic wrote: »

Thanks both ... what would your recommended action be at this point?

Take the DQ questions to Legal Beagles. Get their advice to answer the questions and defend the claim as a non proven debt.

If they fulfil your request for proof, go back to the courts and propose a payment plan, as otherwise you have very little chance to defend the claim any other way really.

Please Help!!!

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