Urgent : Being taken to Court

stapeley

A pity poor offer !

jasonbloomberg

Now received an N150 Allocation Questionnaire (AQ) which to say the least is mind-boggling and isn't going to win any Plain English awards. One thing to note is that the form is slightly different to those described elsewhere here and in other places, but the gist is generally the same.

Having failed to deliver a signed CCA requested two months ago my counter to their claim is that there is no enforceable debt, thus the Draft Directions are to order the claimant to produce a CCA within 14 days or see the case struck out.

Regarding transfer to a local court - That was all automatic, and quite conveniently for me it's about 10 minutes walk away. There's a section on should the case be dealt with at a specific court; the answer is "Yes, the local one, because I'm an individual and proceedings in another court will cause difficulties and hardship".

As to "track"; Small Claims, because although the claim is above the amount for Small Claims there is no case to answer without a CCA. That point noted in an attachment of comments.

With the AQ filed, I'll have to wait and see what happens.

thedebtprofessor

jasonbloomberg wrote: »

Now received an N150 Allocation Questionnaire (AQ) which to say the least is mind-boggling and isn't going to win any Plain English awards. One thing to note is that the form is slightly different to those described elsewhere here and in other places, but the gist is generally the same.

Having failed to deliver a signed CCA requested two months ago my counter to their claim is that there is no enforceable debt, thus the Draft Directions are to order the claimant to produce a CCA within 14 days or see the case struck out.

Regarding transfer to a local court - That was all automatic, and quite conveniently for me it's about 10 minutes walk away. There's a section on should the case be dealt with at a specific court; the answer is "Yes, the local one, because I'm an individual and proceedings in another court will cause difficulties and hardship".

As to "track"; Small Claims, because although the claim is above the amount for Small Claims there is no case to answer without a CCA. That point noted in an attachment of comments.

With the AQ filed, I'll have to wait and see what happens.

Hi Jason,

lucky the case will be struck out within 14 days, fingers crossed.

apologies for not being on here for a while - been hectic but for anyone else who is in a similar position and not been given directions - ie the allocation questionnaire is sent out and allocated to track you could do the following.......

apply for a summary judgment using form n244 yourself against the creditor as follows....

'apply for summary judgment against the creditor'
.....
and in evidence you wish to rely upon in the section 'evidence you wish to rely upon'

"under section 77 of the consumer credit act 1974 the creditor has failed to supply a copy of the agreement within the prescribed period of one month required by section 77 subsection 4.

Accordingly the creditor has committed an offence under cca1974 section 4b and is not entitled to enforce the agreement under cca1974 section 4a.

I therefore request summary judgment be given that the claim be dismissed and my costs of application £x be awarded in favour of the defendant''

the application will cost £40 from what i remember so would ask for those, plus any costs associated with your attendance at any hearings in this case.

the judge should see the allocation to small claims track as a waste of time and dismiss the claim altogether....well fingers crossed!!

you may have to play around with the wording above and double check the sections (they are from memory several years ago) but it should work....

hope this helps

the debtprofessor

BAILIFFCHASER

This is the letter you want to send and also attach a copy of it to any defence that you may lodge later !!!!





Client ref
Your reference :
Client reference :

Dear sir/madam

With reference to the above account, I am writing to confirm I am not acknowledging this debt.would you please send me a true copy of this credit agreement. I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of my credit agreement on request and this should be supplied within 12 working days. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.
Please note that under Section 189 you are obliged to supply these documents whether you are the original creditor or not. I await your reply.


mr/mrs XXXX
Enc cheque number

Do not sign it !!!!

jasonbloomberg

@ thedebtprofessor : An application for summary judgement would be an interesting proposition. I shall have to consider that. Fingers crossed in the meantime.

@ BAILIFFCHASER : Yes, I sent a CCA request off before filing my Defence. It wasn't that exact wording but in the same gist. They acknowledged receiving it and the date it was sent, so they've had two months in which to comply.

A moral there for everyone, whether late in the day or not, get a CCA request in, sent recorded delivery. There's little to lose and everything to gain. If you're going to get "banged-to-rights", you will be anyway, but why make it easy for them ?

RAS

Dear Sir/Madam

Re:−
Your Client Ref:



I refer to my letter dated (enter date) which was delivered via Recorded Delivery to your offices on (enter date).

You have failed to acknowledge this request by not supplying the requested documents. The documents I requested should be readily available as proof of your legal right to collect this account.

In my letter of the (enter date) I made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 and a true signed copy of the Deed of Assignment. In addition a full statement of my account should have been sent to me detailing all debits and credits to the account from the time (enter DCA name) purchased this account, along with any other documents mentioned in the credit agreement.

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, as defined under Section 189 of the CCA 1974.

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, your company commit an offence. These time limits expired on (enter date) and (enter date) respectively.

As you are no doubt aware, Section 78(6) states:

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.

Therefore on (enter date) this account became unenforceable at law and no further payment will be made by myself to the account, as you have failed to comply with a request for a true signed copy of the said agreement, and other relevant documents mentioned in it, and failed to send a full statement of the account and failed to provide a true copy of the Deed of Assignment, under the relevant sections of the Consumer Credit Act 1974. Further, I do not acknowledge any debt to (enter DCA name).

I require the following action from (enter DCA Name) :

1. All payments made to date to (enter DCA name) for this account should be refunded in full, including interest at the rate of 8% per annum.

2. Removal of all defaults entered by (enter DCA name). Note this is to be a complete deletion and not merely an amendment.

3. I look forward to compensation under Section 13 of the Data Protection Act 1998 to be offered for the processing of my data in the manner it has been done over the past number of years.



4. After a full refund of all payments with interest and compensation are received by myself, you will be required under Section 10 and Section 12 of the Data Protection Act 1998 to cease and desist all manual and automatic processing of my data within your company and any other company within your group.

If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force (enter DCA name) or any other company within the group to comply with the refund of all monies paid, removal of all defaults maintained and compensation for damage and distress as a result of unlawful data processing. I may also pass the matter to the relevant enforcement authorities including, but not limited to, the OFT, the Information Commissioners Office, Trading Standards, the CSA, the FOS and my local MP.


Data Protection Act (Data Protection Act 199

Furthermore, under the Data Protection Act (D10), you are also denied the authority to pass on any of my personal data. To do so in the circumstances is I understand a breach of the Data Protection Act 1998, and also the OFT guidelines, and should you ignore my request it would again result in you being further reported to the relevant authorities.

I look forward to your reply within 14 days to resolve the matter amicably.


Yours faithfully

Jason have you sent the bogoff letter and reported them to Trading Standards and the OFT for pursuing a debt which is unenforceable?

BAILIFFCHASER

jasonbloomberg wrote: »

@ thedebtprofessor : An application for summary judgement would be an interesting proposition. I shall have to consider that. Fingers crossed in the meantime.

@ BAILIFFCHASER : Yes, I sent a CCA request off before filing my Defence. It wasn't that exact wording but in the same gist. They acknowledged receiving it and the date it was sent, so they've had two months in which to comply.

A moral there for everyone, whether late in the day or not, get a CCA request in, sent recorded delivery. There's little to lose and everything to gain. If you're going to get "banged-to-rights", you will be anyway, but why make it easy for them ?

If they have not complied report them to your local magistrates court. Send the court a letter and attach a copy of the cca request amd as them to issue a criminal summons.

jasonbloomberg

@ RAS : I will probably contact the OFT and Trading Standards, but with the matter before the Court it's not IMO worth pursuing the matter with the DCA; that could just be seen as antagonistic, and the Court might not look too favourably on it either.

@ BAILIFFCHASER : I'm not sure Magistrates have the power to issue such a summons on an individual's behalf but I'd have to check further.

While I'm fully of the 'take no cr-p, give them hell' mindset, that has to be balanced against, even restrained by, what's best for me. If they hadn't commenced court action or there wasn't so much at stake I would probably consider it differently. In fact I'm sure we could have come to some agreement in a civil way, but they wanted to throw their weight round and be outright abusive so the barstewards will hopefully get what they deserve. But I do have to consider the possible consequences and they are not minor.

fermi

jasonbloomberg wrote: »

I'm not sure Magistrates have the power to issue such a summons on an individual's behalf but I'd have to check further.

In theory I think you can. But the statutory duty/authority to pursue these matters lies with Trading Standards.

Last time I checked with TS, their exact words were "we feel that this would be an unwise course of action for an individual to pursue".

DON'T try this without taking FULL legal advice. It has the potential to land you in an absolutely enormous pile of poo!

BAILIFFCHASER

you need to write to your local magistrates court and do as i have said previously.