CCJ Help

lolamosschops_2

bump please

10past6

hatparksol wrote: »

which we will rely at the forth coming hearing.

In relying upon this document we will refer at the hearing to the High Court decision in Carey v HSBC & others and also Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

Fine, let them proceed :mad: hit back with the following which over rides their statement:

An entitlement to any part set out at Consumer Credit Act 1974 section 87 (1)(a) to (e) is subject to prior service of a default notice in accordance with section 88, giving to the debtor not less than 14 days following service to comply.

Section 88(2) says
A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

Any attempt to claim the entitlements before the expiration of the period of time for compliance (being not less than 14 days following service) would amount to a breach of section 88(2) and any notice of termination of the agreement delivered within the period allowed for compliance would in my opinion, constitute an unlawful termination of it.

If they claim the CCA is enforceable, the DN they issued is defective, they can't have it both ways

lolamosschops_2

Thank you, 10past6! - I suspect they are trying it on really to frighten me - I feel remarkably calm really, as for my preparation I shall just take all the copies of paperwork and a few statements from this site to assist. I am not a lawyer and I would be surprised if the Judge expected me to behave like one. I shall just give him/her the facts and support it with the lack of paperwork from then and see how I get on.

DarkConvict

I got your PM but i do not think i have much to add, 10past6 as always has given good advice on court related matters.

Have you asked never in doubt to check to see if your CCA is enforceable. If not then this will stop dead in the water, no valid CCA no court action can be awarded. This includes charging orders etc.

As 10past6 pointed out, a default notice must be issued before been applied to your credit file, both a notice that it has been applied (your account is defaulted) and a default notice of the impending default (the 14-28 days to fix the arrears). If these are not sent the default is unfair under OFT guidance and will be removed. The SAR has proven the documents were never sent or created as they were not mentioned in the documents sent to you. If they were to bring one to the courts it would look both iffy in that it could have been recently fabricated (not unheard of) but by failing to include it in the SAR they have breached the Data Protection Act for not fully complying with the SAR request.

lolamosschops_2

thank you dark convict - my DH was in a bit of a panic because the CCA has appeared when we have less than a week to go before action. he was prompted to pm you by another of this sites angels. I really appreciate your input though and will bear in mind what you said in final preparations. I would love to ask Niddy for his advice but I am aware that he has removed himself from site. However his legacy lives on and his thread is extremely informative. One day I hope he returns.

lolamosschops_2

Well, just back from the courts, and the set aside has been granted in my favour to allow me time to file a defence. They have conceded the maliciously applied PPI and suggest I chase that through the small claims court.
I have to say it was very scary but the judge was calm and measured and seemed to be used to dealing with sobbing women (blush - I did try to keep professional but nope) he has suggested that I try to obtain legal representation as he believes there is good reason to do so. I shall probably post more later but for now Thank you for all your help ans I am off for a cup of tea and a calm down.

lolamosschops_2

I think on the whole I made a fool of myself in the beginning, the day did not start out well when the plaintiff sent a bill to me for a further 650 quid for their attendance at court. Boy I was fizzing , not only had I paid for the set aside but THEY had turned it into a final charging order hearing - however as pointed out on another thread that part could not continue until the set aside was heard. I was put on the back foot a bit when I was approached by the solicitor who was representing them on my arrival at court, she came over to inform that they were prepared to concede the PPI but that I would need to pursue that through the small claims court (?). When we got into the courtroom The judge was quite brusque and asked me why I though I had good cause to request a set aside, I waffled on a bit about CCA and default, burst into tears (which he ignored - phew). I composed myself while their side had their say. The judge asked me a few more times to be clear why I was requesting the set aside, was losing it big time and mumbled about unenforcibility, no CCA, no default, no termination letter despite asking for them twice, and they countered back with Carey vs HSBS and all of a sudden I found my voice and responded that all of this was irrelevant - If the CCA existed and If the default had been issued and if the termination had been issue - WHY WAS THERE NO EVIDENCE OF ANY OF THESE DOCUMENTS IN MY SAR!!!!!!!! - the judge didn't look up but i swear there was the merest trace of a little smile at the corner of his mouth and he announced his decision.

In his summing up he said he had listened to both parties and stressed that he would only grant a set aside if he believed there was a real prospect for successfully defending the claim. He asked if I had visited Citizens Advice Bureau but I explained that there was a 6 week waiting list and I worked full time, he then suggested I speak to the law society to gain some advice and that this should be free of charge initially.

He then announced his decision;

1) The judgement ******* is set aside
2) The defendant shall by blah blah blah (14 days) file with the courts and serve on the defendant a fully pleaded defence, setting out in clear terms why she believes the claimant is not entitled to the amount claimed.
3) He has adjourned the interim charging order until the next available date after 28 days.
4) He asked if i had any costs - I hadn't thought about these so I said that only for my time and that I had taken AL so therefore was not out of pocket DUR but I told him about the bill I had received from them and he said he was making no order for costs.

So we packed up and came out shaken but not stirred lol . On the way out we said thank you, goodbye and he responded with "good luck"

its not sunk in properly really - did we do good? I think so, do we feel good about it - not really - I wish we hadn't been forced into it. Would I do it again? If I had too. We are not bad people, we are just struggling at the moment but we have the determination to get out of this mess and get back to normality sooner rather than later.

As usual feel free to comment/post/question.

DarkConvict

Im glad you got it granted, it sounded like a close call but as you say you want it set aside because they never presented any evidence, so when you legally requested the evidence by means of a SAR, and it was still not provided you felt you had grounds to dispute any court claims until they could provide evidence to your liability and a court enforceable agreement.

i believe there is something called CPR (i think), for getting a signed CCA. It maybe worth looking up been that you have to be in court proceeding in order to use the CPR rulings.

badgerbread

I don't mean to hijack the debate but have a question I have been sent court forms and I am defending them. I requested a SAR from the solicitors that are dealing with it they have sent me the cheque back along with a letter saying that it is the policy's company not to accept SAR that have not be signed. I typed everything as I have been advised previously never to sign anything as some banks have dodgy practices. what do I do now? please help with regards to getting the SAR thanks

SusieT

badgerbread wrote: »

I don't mean to hijack the debate but have a question I have been sent court forms and I am defending them. I requested a SAR from the solicitors that are dealing with it they have sent me the cheque back along with a letter saying that it is the policy's company not to accept SAR that have not be signed. I typed everything as I have been advised previously never to sign anything as some banks have dodgy practices. what do I do now? please help with regards to getting the SAR thanks

Send them http://forums.moneysavingexpert.com/showpost.html?p=33791861&postcount=20 and it should sort them out.