Equidebt/scotcall - Ccj!!!

andys123

Have been paying Scotcall DCA for around 4/5years now for an old Woolwich loan which in turn is now owned by EQUIDEBT. During the summer I was off work for a while and wrote to Scotcall asking to suspend pyaments until I was back at work full time. They sort of agreed and I then contacted them again to resume payments but they said that they had returned the 'case' to EQUIDEBT. I contacted them and they said to wait until they had the info from Scotcall and they would be in touch.
They got in touch and a new payment plan was put in place direct through EQUIDEBT, first payment due Novemeber 17th.
I sent a payment over the weekend of the 17th but on the 19th I received a County Court summons from the court/solicitors.
I have contacted/pleaded with EQUIDEBT/PARKER BOURNE solicitors but they say now that the court process has started it can't/wont be stopped.
Is there anything I can do to halt/delay the court process until I have sufficient funds to pay this?
Solictors reckon they could have a judgment by mid-December. This is the last thing I need as I have 3 CCJs 'dropping' off my file in February - 6yrs of 2nd class loan rates/mortgages - I was looking forward to having a 'clean' file for the first yime in nearly 8years!!!

Any advice?

fatbelly

Is there a signed agreement on this account. I notice you did the CCA thing on another debt - have you done it on this one?

If it is valid then you need to respond to the claim form asking for payment by instalments. If it isn't then you should defend the claim.

Either way you have 14 days to respond but can buy an extra 14 days by acknowledging service.

factsheet here

andys123

No haven't yet done the CCA, didn't know if it was too late or not. As I've said, I have been paying it every month except for a few months during the summer when I was off work sick ( I told them I couldn't pay for a few months)
Basically, Scotcall sent it back to the owners of the debt - Equidebt - and they have tried for a CCJ because of receiving November's payment 3 days late!!!
The date of the court papers is 19th November so I haven't had chance to do anything yet.
I realise that I have to acknowledge the court papers so do I have to ask for a copy of the CCA before then as if 'preparing my defence'.
Admittedly, if they produce everything then I am liable, but I asked them for a settlement figure to halt proceedings (parents help) and they would only give me a 10% discount whereas when I reset the agreement back in October they potentially offered me a 50% discount, but I wasn't in the position then to pay it (hindsight!!!!)

fatbelly

andys123 wrote: »

I realise that I have to acknowledge the court papers so do I have to ask for a copy of the CCA before then as if 'preparing my defence'.

I'd say yes. The older the debt and the more it's passed around, the less chance there is of the original signed agreement still being on file.

This is a defence I've used a few times:

The agreement is regulated under s8 of the Consumer Credit Act 1974 (CCA 1974) and does not fall within any of the exemptions in s16 CCA1974 or under the Consumer Credit (Exempt Agreements) Order 1989.

Under s61(1)(a) CCA1974 a regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to the regulations under s60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner.

Under s65(1) CCA1974 an improperly executed regulated agreement is enforceable against the debtor on an order of the court only.

Under s127(3) CCA1974 the court shall not make an enforcement order under s65(1) if s61(1)(a)(signing of agreements) was not complied with, unless a document (whether or not in the prescribed form and complying with the regulations under s60(1) itself containing all the prescribed terms of the agreement) was signed by the debtor or hirer (whether or not in the prescribed manner).

I have no written agreement or document of any kind. The claimant has failed to comply with the requirements of s61 CCA1974. The regulated agreement is improperly executed under s127(3) CCA1974 and cannot be enforced by the court.

andys123

Just a couple of questions.
Do I ask for the original CCA agreement now, bearing in mind I have to acknowledge the court papers by 8th Dec?

Do I acknowledge court papers and ask for more time (extra 14days) to submit a 'defence' which would involve asking them for the information that they intend to use in court which would surely be the original agreement.

Do I have to ask Equidebt or their solicitors for the information?

Now its going to court, are they still obliged to provide the info as requested.

When I successfully got charges refund from Lloyds Tsb I remember it was me who had to supply all the info to the court/Lloyds on which my claim was based. As per my previous point, surely they are going to base their case on the original CCA which they would have to provide to me if I was defending it.

I know its a case of just writing to them and asking for the CCA but I have to bear in mind the time constraints now it's in the court process.

fatbelly

The only defence you have (well, the only one with a good chance of being upheld) is that there is no signed agreement.

So the sooner you establish whether they do or do not have one the better.

Should you acknowledge service? Yes, it gives you 14 extra days.

You communicate with the solicitors. I would ask them for the signed agreement. If they have still not shown it to you when there are a few days left then use the defence I gave earlier.

However, there may also be merit in hitting Equidebt with a S77-79 letter as default after 12 days makes the debt unenforceable under those sections as well as S127, and there is still time to do that.

Yes, realistically, whether they get a judgement or not hinges on the signed agreement. But if you do not bring up the matter, the courts won't.

If the worst happens and you get a 'forthwith' judgement, you have 14 days to ask for redetermination by a district judge.

Good luck!

fatbelly

Found a letter on the Consumeractiongroup site that you could send to the solicitors now (seems thorough!):

In the XXXX County Court
Claimant -v- (YOUR NAME)
Claim Number: (CLAIM NUMBER)


Dear XXX

CPR 18 - REQUEST FOR INFORMATION

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.


1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

(a) a copy of the procedure(s) used for copying, storing and retrieving documents
(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)
(c) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with
(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

2. All records you hold on me relevant to this case, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor
b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)
c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.
e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998
g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.
h. Copies of statements for the entire duration of the credit agreement.


3. Any other documents you seek to rely on in court.

4. Proof that the debt is not barred by the statute of limitations act


I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

Yours sincerely,

XXXX (type, don't sign).

andys123

Just an update. Received court summons as posted above and returned the court papers with partial liability due to not knowing the exact amount that was outstanding and how much I'd paid.
Received a letter today stating that due to my previous payments towards repaying the debt that they would 'stay' the court summons and allow me to repay the debt under a 'consent order' at an amount that is less than I was already paying them!!
This will halt the county court action therefore preventing a CCJ.
In between them receiving my court papers and myself receiving this consent order I posted a letter asking for the original CCA.
I havent' yet received anything and feel that what I've got is not a bad deal, all things considered.
All they've sent me is a statement of account while it has been dealt with by them and a letter referring to the notice of assignment, not the CCA, although I only reqyested this a few days ago.
Not a bad result really when I was facing the prospect of another CCJ for the next six years.

Deep_In_Debt

Well done. Sounds like it may have gone in your favour. Good result.

fatbelly

Well that seems like a result!

However, this has definitely got the feel of an unenforceable debt.

What you do next depends on how bolshie you want to be. But bear in mind that it does not appear that they are confident that they could get any sort of order on this one.

andys123

I agree. A good result but i don't want to force their hand by continuing to 'demand' an agreement that may/may not be there.
I simply wrote a covering letter stating the 'mitigating' circumstances in with respect to my communications with Scotcall (their collecting agents). I sent this with my completed court papers which in turn were passed on to Equidebts solicitors who in turn responded to them with the 'stayed - consent order'. I suppose that if they were certain of getting a CCJ against me they would have done so, but after all, it was the prevention of a CCJ against me that was my main aim of this.
So, I am now paying half the amount I had been paying them for about 4 years and there is no CCJ against me.