Case going to court in next couple of weeks - C/C debt

[whatsmyname]

Good afternoon,

I was wondering if you could assist with a court claim which is due to go to county court in the next month, and I have been asked to help at very short notice as the individual who has been suffering illness. In summary the following has happened:

Card take est 1996, agreement and statements requested via telephone but absolutely no response for over 6 months from HBOS.

Debt built up and was being paid off monthly with no issues up untill c2009 when the card holder became seriously ill and has been off since, has had no income. Interestingly, a card payment cover payment was seen on one of the older statements from 2003 however nothing has been covered when payments became difficult and stopped due to accident and sickness. post 2009 the debt just snowballed with late fees as income had stopped and now the debt is around 1k higher. The figure being claimed is around 2k total by the debt coll company, who appears to not even have a website.

Payments were made and missed every now and again after accident in 2009, leading to around 5 different debt collections companies claiming debt, some debt repayment agreements were in place with the banks, and was then handed to Debt coll. Payment plan then in place with a debt coll company, then all of a sudden there was no contact and payments ceased.

Warrant of excution was set aside successfully due to defendant illness and then hearing now to take place as a result. Won on the basis of debt was already paid.

Overall, this is a pretty messy case, however would hate to see this person walked all over yet again considering so many different people all trying to claim the debt, like a bunch of vultures it has been apalling.

I believe there is enough evidene to say there is a current agreement with another debt coll company. I think she has been paying just to keep them off her back however still says this has been paid, and HBOS would not confirm anything and just said speak to debt coll company, who simply do not care, or another one will come along asking for the money again.

Thanks for staying with me so far, however the main points of contention are;

Can other arguments be used if needed considering was set aside for debts paid?

The cardholder has said that they believe this has been paid, and has evidence to show a payment plan, has an insurance policy for card cover, and made a payment into bank account which would have covered the debt. There appears to be written notes as to what the payment was for, however don't know if it has any value legally.

Can anybody advise where we stand on this?

Thank you for any assistance you can provide.

In addition, I think this case coming up is the actual hearing to set aside.

[Amethyst]

Re: Case going to court in next couple of weeks - C/C debt

So just to be clear ... the case has already gone to court ... judgment made and warrant of execution started but stayed pending an application to set aside the judgment on the basis that the debt has already been paid ?

[Amethyst]

Re: Case going to court in next couple of weeks - C/C debt

Sorry, and welcome to legalbeagles xxx. We may need to see the application to set aside entered if you can get hold of it. We'll also need to send a SAR and a request formally for copy of the agreement but we are short of time. When is the hearing?

[whatsmyname]

Re: Case going to court in next couple of weeks - C/C debt

Yes this appears to be a hearing to have set aside, I am weary of being too specific with details on here but is within the next few weeks.

Sorry, and welcome to legalbeagles xxx. We may need to see the application to set aside entered if you can get hold of it. We'll also need to send a SAR and a request formally for copy of the agreement but we are short of time. When is the hearing?

The app to set aside simply has the reasoning on it for why the defendant felt it should be set aside which was to enable a defence of the claim, could not attend or respond for reasons of ill health, am awaiting evidence from bank that this has been paid, and the defence may change if new evidence comes to light.

[Amethyst]

Re: Case going to court in next couple of weeks - C/C debt

Ok. Regardless of being able to attend etc the set aside application will only be considered if there is a reasonable chance of a successful defence (ie the defendant can prove that the debt has been cleared via evidence of payments made) From what I can work out from your posts the defendant thinks they have repaid the debt in full direct to the Original Creditor (HBOS) but the DCA's are continuing to chase, hence the court action.

Approx how much is/was the claim for ?

Have they drawn up a witness statement to support the application to set aside ?

Was the payment protection insurance claimed against ?

Do you have details of all the payments made direct/via DCA/DMP etc ?

Was a default notice received ?

I'd suggest sending a request for a copy of the original agreement to the DCA with a £1 statutory payment. I would also get a formal SUbject Access Request off to the original creditor, AND the DCA, if at all possible with the statutory payment of £10 per request. Regardless of whether these will come back before this hearing you will need them if it goes to a full defence hearing later.

Can you say who the DCA are (it's good to know who you are dealing with as we have dealt with lots of different ones and you get to know how they operate which helps with forming defences etc)

Also does the defendant own a property?

[whatsmyname]

Re: Case going to court in next couple of weeks - C/C debt

There is evidence of payments being made monthly over the years however still c1k was o/s when HBOS decided to no longer request payment and passed to various agencies, there was a payment into the bank account at Halifax at some point to cover the debt however there is no evidence to show the bank actioned this from payment although a handwritten note can be seen on the deposit slip to reference the c/c.

DCA is CAI finance ltd

[whatsmyname]

Re: Case going to court in next couple of weeks - C/C debt

call me a cynic, but what would the position be if they refused to send the c/c agreement, we are pretty sure there isn't one. Could this be unenforceable, we have had verbal confirmation from Halifax there isn't one, however nothing in writing.

[Amethyst]

Re: Case going to court in next couple of weeks - C/C debt

If there is no credit agreement and you do get the claim set aside then they would be unable to enforce the agreement until they find one that is fully compliant (get a formal request under the CCA off to them tomorrow - only need be simple - eg

Dear Sir/Madam

Re:− 000000000000

With reference to the above agreement, we would be grateful if you would send us a copy of this credit agreement.

We understand that under the Consumer Credit Act 1974 (Sections 77−79), we are entitled to receive a legible copy of our credit agreement on request. We enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

We understand a copy of our credit agreement should be supplied within 12 working days.

We look forward to hearing from you.

Yours faithfully




NAME

[Amethyst]

Re: Case going to court in next couple of weeks - C/C debt

CAI is 1st Credit / connaught collections - there's a fair few threads on here dealing with 1st Credit and CAI so have a look through some of those.

The payment made into the bank to repay the c/c - was this a full payment of all outstanding debt on the c/c at that time?

Does it show on bank statements as going into and out of the account to the C/C account ?

[whatsmyname]

Re: Case going to court in next couple of weeks - C/C debt

No it doesnt.


Is the fact it is unenforceable with no cc agreement grounds to have it set aside. Is there little point in arguing about the debt as it may create a contract in itself if the debt was acknowledged?

[PlanB]

Re: Case going to court in next couple of weeks - C/C debt

there was a payment into the bank account at Halifax at some point to cover the debt however there is no evidence to show the bank actioned this from payment although a handwritten note can be seen on the deposit slip to reference the c/c.

Forgive me for being silly but was the payment that you made to clear the debt made before or after the county court summons was issued?

What do you mean by "no evidence to show the bank actioned this"? You have evidence in the shape of a deposit slip which references the credit card so where did the bank deposit your money?

[PlanB]

Re: Case going to court in next couple of weeks - C/C debt

Is the fact it is unenforceable with no cc agreement grounds to have it set aside. Is there little point in arguing about the debt as it may create a contract in itself if the debt was acknowledged?

Only a court can deem a credit agreement or an account *unenforceable* not you or me. So in this case you will need to demonstrate to the court that there is enough doubt and viable legal argument surrounding the agreement that the judgement should be set aside to give you the opportunity to Defend the claim and have a fair trial which is what you missed last time around. If you get the CCJ set aside there will be another hearing. The set-aside hearing only decides whether you should be entitled to another hearing.

[whatsmyname]

Re: Case going to court in next couple of weeks - C/C debt

With regards to the payment we have here a receipt however the bank won't respond to our request on this.

[whatsmyname]

Re: Case going to court in next couple of weeks - C/C debt

Quick question, could it potentially be considered a contract if payments have been made to repay the cc? could this strike out the 'lack of credit agreement' argument?

[FlamingParrot]

Re: Case going to court in next couple of weeks - C/C debt

Quick question, could it potentially be considered a contract if payments have been made to repay the cc? could this strike out the 'lack of credit agreement' argument?

Payments keep the debt alive (stops it from going SBd) but that has nothing to do with unenforceability due to lack of a credit agreement. For accounts started before April 2007, there has to be a properly executed agreement with all the prescribed terms, signed by the debtor. For accounts started after that time, the court has discretion to enforce. :juge: