**CLAIM DISMISSED ** CCJ for old debt - have no idea what to do - court claim

[Alfa1steve]

Re: CCJ for old debt - have no idea what to do - court claim

Hi Lowlowola

I know its hard but try not to get stresses, don't let them get you down.

I am no expert by any means and i do not want to dissuade you from taking a particular course of action that you seem settled with, however it would seem to me you have a fair chance. You have done everything that has been required of you and DF have not fulfilled on a court order to submit documents by the deadline given.

I understand the stress that this can cause but if i was you i would hang fire for at least another 3 weeks, keep checking with the court to see if they have received anything etc. before trying to negotiate a Tomlin order.

I only have my own experience to go from but when i have negotiated my tomlin order i simply called up the DCA asked to speak to someone in the litigation team.
I made a point of explaining that the conversation is with out prejudice etc, pointed out the bad points in the DCA's case, They pointed out what they thought the good points where and then discussed settlement options. The thing to remember is not to allow them to bully you and you to not have to agree to anything straight away. If an agreement is reached tell them you would like to think about it and sleep on it.

I hope some one with a little more experience comes along to offer more advise. but try not to get stressed time is on your side.

Chin up

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Thanks for taking the time to reply Alfasteve1. Its all just so distressing particularly as there is no way I can attend the court date. I will leave it a week as you suggest. Court today confirmed still no paper work

I hope you don't mind me asking a couple of questions did you negotiate a lower settlement and did you pay by instalment?

thanks a million

LLL

[mystery1]

Re: CCJ for old debt - have no idea what to do - court claim

You can make an application to the court to change the date. If the opponent agrees then it's £50. You could try a cheeky letter to the court first.

Also, for a small claim, you can make the court and claimant aware that you will not be present but you'll need A1 paperwork and a fantastic skeleton argument which is easily followed as well as some luck with the judge. This needs at least 7 days notice.

M1

[Alfa1steve]

Re: CCJ for old debt - have no idea what to do - court claim

Hi Lowlowlola

I negotiated the amount down by about 40% and payed in instalments.

Why not have a go at what [MENTION=5354]mystery1[/MENTION] is suggesting? get the court date changed?

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Thank you both so much for replying

sorry for the delay and working long hours to get this project finished for the march deadline - which is not helping with my stress levels these things always come at once dont they!

I think i will as suggested let it lie for another week - I would feel confident putting the skeleton argument in place but time is the barrier to this as am working 12 hour days at the moment.

if i did write to the judge it would be along the lines that i have a non negotiable work commitment and am unable to attend and they have failed to comply with the order to submit witness statements and therefore as an LIP i am finding it difficult to prepare a written defence .. does that sound about right

Thanks again - i realize i am taking up your valuable time but I really am very grateful for your help

LLL

[mystery1]

Re: CCJ for old debt - have no idea what to do - court claim

If trying a cheeky letter to the court i'd do it asap because it's a low chance of success and you might need an application and if you delay too long it might hurt you in costs.

M1

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Thanks m1

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Having another sleepless night over this case. Have almost decided to roll the dice and submit a skeleton argument for the judge to consider in
my absence , noting that they have still not supplied their evidence as per the court order. I realise this is a chance but tbh just want it over and done with . I have no savings and don't own a car or property . If I do get a judgement apart from an attachment of earnings order there is not much they can do - to make me bankrupt would cost them money !

So my question is can I post my skeleton on here or is that not advisable as I can't seem to find many examples on the site ?

Thanks

lll

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Hello all
I am trying to pull myself together over this. I would be grateful if a :tongue2: could cast an eye over my skeleton defence. Still no witness statement or docs supplied by the claimant. Still cant attend the court. I called the court who said basically it was too late to move the date as it was up to the judge and they said i should just write in as the hearing would go ahead.

Its 13 days til the hearing
my arguments are as follows, if you think i am on a loser please let me know

LLL – Skeleton Argument

Introduction
1.I am the litigant in person for this case. Due to a non-negotiable work commitment as explained in my email of 16^th February 2015 I respectively request that the court considers the case in my absence.

2. This argument is intended to elucidate and clarify the issues that I have raised in defence of the claim brought against me by Capquest Invesment Ltd for a Credit Agreement regulated under the Consumer Credit Act 1974. It is intended to be read in conjunction with the defence and witness statement I have already submitted to the Court and Claimant.

Background
3.The factual background leading to this argument are detailed in the defence and witness statement together with exhibits, in its entirety, and I therefore do not intend to repeat it here save to say that reference will be respectfully made to relevant paragraphs in support of specific points raised in this skeleton argument.

4. The claimant has failed to comply with the court order of XXX to submit all documents including a witness statement which they wish to rely on in court by 11^th December.

5. The claim relates to a credit card agreement taken out in 1999 for a XXXX trade union affiliated card.

The Terms and Conditions Supplied
6. Further to a request under Civil Procedure Rule 31.14 The Claimant has provided two documents it claims are the reconstituted executed credit agreement in place at the time of opening the account and the current terms Exhibits D and E. No signed agreement has been supplied

7. I respectfully submit that the reconstituted agreement supplied by the Claimant does not contain the prescribed terms and conditions applicable at the time of opening the account (paragraph 9 – 10 of my Defence ) and has not satisfied my request under s78 of the consumer credit act.

8. There was an element of confusion when inspecting the terms and conditions documents as they have been annotated “orig” and “current” however it appears that they have been transposed as the document marked origl refers to the Consumer Protection {Distance Selling) Regulations 2000 or the Financial Services (Distance Marketing) Regulations 2004 which would not have been in force in 1999 and the terms annotated current are dated on page 5 as 10/98. I have therefore taken it there has been an administrative error and have taken the document dated 10/98 as the purported original prescribed terms

9. The card referred to in the claim was promoted for XXXXXXXXXXXXXXXX XXX members and nowhere in the document is the XXXXXXXXXXXXXXXX affinity card brand referenced

10. The reconstructed agreement does not show the approved credit limit at the time of opening the account

11. The specific 0% APR time limited introductory offer which was in place at the time and the conditions of the introductory offer are not included in the document the claimant states are the reconstructed original terms that were allegedly applicable to the account.

12. The document states the interest rates under section 10 iii) “The APR is 19.9% for all transactions except Cash Advances for which the APR is 21.8%.” There is no mention of the 0% rate or the time frame for the promotional material, unlike in section 3.3 of the current terms they have supplied.

13. The reconstructed agreement does not contain a schedule of charges in relation to the credit card in section 10 iv the agreement stages “If the bank has cause to communicate with the Principal Cardholder as a result of a breach of this Agreement the Bank may debit the 14. Card Account on each occasion with a charge in accordance with the current tariff which will be pre-notified to the Principal Cardholder”. The charge tariff applicable at the time which I believe was included in the original terms has not been supplied.

The Default Notice
14. The claimant also supplied template of the Default Notice they state was sent to the Defendant on 7th February 2011 Exhibits F and G I respectfully submit that given the inaccuracies stated in my defence paragraphs 12- 18 The claimant has failed to show me that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.87 & 88(1).

The inconsistencies I have in my defence Paragraph XXX highlighted also lead me to bring into serious doubt that the reconstructed Terms and Conditions are a true copy of the Terms and Conditions applicable to the account or if they are that the Default Notice template supplied is inaccurate and not a true example of what would have been sent.

The Original Application
15. The original agreement sent by direct marketing mail from the Unison Trade Union which I was a member of and returned by mail to the Bank of Scotland by her. Accordingly there was no copy of the agreement for the Defendant to retain, which is a breach of s62 Consumer Credit Act 1974, and the agreement is improperly executed. which is a breach of s62 Consumer Credit Act 1974

The Relevant Legal Framework
Terms and Conditions
16. I contend that the reconstructed Terms and Conditions are not a true copy of the Terms and Conditions applicable to the account at the time of the inception of the account . Exhibit D for the following reasons:

17. I contend that the Claimant (and/or the original creditor) has failed to satisfy my s78 CCA1974 request for valid copies of any valid agreement that they may have and that as a result of s78 (6) CCA 1974 the agreement is therefore unenforceable against me. To satisfy a s78 CCA 1974 request the documents sent must comply with the Consumer Credit (Cancelation Notices and Copies of Documents) Regulations 1983) (“the copy documents regs 1983”).


18. I wish to draw the courts attentions to Carey V HSBC (attached) in the ruling it was made clear that the creditor needs to provide a true copy of the executed agreement, and where the original had been varied either a copy of each discrete term that had been varied or a copy of the current terms and conditions as the contract stands at the date of the request.

19. Carey V HSBC 53(12) states that the creditor must ensure that the contract is “honest and accurate” for the reasons stated in paragraphs 6 – 13 above I contend that reconstituted agreement sent to me is not an accurate representation of the terms and conditions at the time the account was openend.

20 It is respectfully submitted that the document supplied is improperly executed because it is not in the prescribed format set out in under The Consumer Credit (Agreements) Regulations 1983. The agreement was made before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

21. Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since these documents do not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.

The Default Notice
22. I respectfully submit The claimant has failed to show me that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.87 & 88(1) thus giving a right to demand immediate repayment of the sums claimed.

23. I further contend that the Default notice produced fails to specify the information required Consumer Credit Default Enforcement and Termination Notices Regulations 1983 Regulation 2 and schedule 2 paragraphs 3(a-c) of the Regulations given as refrerred to in para XX of my defence

The Original Agreement
I respectfully submit that the terms and conditions applicable at the time the account was opened were not provided until the credit token was provided to the defendant, which was acknowledged by the defendant. Accordingly this is a breach of s61 (1)(a) Consumer Credit Act 1974 as the prescribed terms were not present at the point of signing and the application did not contain any of the prescribed terms. Accordingly pursuant to s127 (3) Consumer Credit Act 1974 the Court may not make an enforcement order where there is a breach of s61 (1)(a) Consumer Credit Act 1974

I refer to HFO Capital limited v Wegmuller paragraph 18 (attached) in which the case of HFO Services Limited v Kirit Patel is referenced 9.
His Honour Judge Platt said at paragraph 19:
-�Therefore, in my judgment, when the defendant wishes to rely on section 65, several consequences flow. First, it is not sufficient for him simply to allege that the agreement is not properly executed. He must specify the particular breach or breaches of the Regulation on which he relies. The burden of proving that the agreement has been properly executed then rests with the claimant. It is his obligation to put before the Court evidence which he considers sufficient to satisfy the Court on this issue.-�
The Claimant has made submission of evidence that the agreement was properly executed.
Conclusion
For the For all the above reasons, I respectfully request this Honourable Court strikes out the claim

[nemesis45]

Re: CCJ for old debt - have no idea what to do - court claim

Hi,
Para 23 Your contention is incomplete. should it be fails specify the information required to remedy the default?

Last para substitute " in my judgement" for " It is my contention".
Loose the Bold characters in the conclusion.
nem

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Thank you Nemesis. Do you think it stands up ok? or would anyone advise trying to negotiate.

i am overly stressed and cant really think straight and would be grateful for an opinion

LLL

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

im really sorry to ask again but i honestly dont know what to do and am losing sleep as time is ticking, I understand that it is my decsion in the end but i would value the experience of members here if it is worth it submitting my arguments in writing as i am unable to attend noting that they have not submitted ANYTHING to the court or should i capitulate and try and negotiate a payment plan with them

sorry - am getting desperate its 13 days till the hearing

[Amethyst]

Re: CCJ for old debt - have no idea what to do - court claim

YEs of course it's worth you submitting your arguments and case - witness statement and skeleton argument and any evidences. I would add in your skeleton that you do not recognise the document and make some kind of positive assertion that you did not sign such a document.

Just going to have a better read xx

[lowlowlola]

Re: CCJ for old debt - have no idea what to do - court claim

Thanks Amethyst I am so sorry to take up your time, I have really let this get on top of me and am blowing it all out of preportion

thank you for replying - this site is my sanity

[Amethyst]

Re: CCJ for old debt - have no idea what to do - court claim

I've gone through some of it to try bring it into a readable order for the Judge. I've got down to the line and will try have another look in the morning for you but if you can't sleep see if you can carry on stripping it back a bit to the actual arguments.




Introduction

1. I am a litigant in person and defendant in this case. Due to a non-negotiable work commitment as explained in my email of 16^th February 2015 I respectively request that the court considers the case in my absence.

2. This argument is intended to elucidate and clarify the issues that I have raised in defence of the claim brought against me by Capquest Investment Ltd for a Credit Agreement regulated under the Consumer Credit Act 1974. It is intended to be read in conjunction with the Defence and Witness statement I have already submitted to the Court and Claimant and can be found at Exhibit A and B.

3. The Claimant has failed to comply with the court order of XXX to submit all documents on which they intend to rely to the court before 4pm 11^th December 2014

4: The documents supplied by the Claimant previously fail to satisfy the requirements under the Consumer Credit Act 1974.


Credit Agreement

4. The claim relates to a Credit Card agreement regulated under the Consumer Credit Act 1974.

5. The Claimant's submit the account was opened in 1999.

6. The original lender was HBOS. The Credit Card was a UNISON Trade Union affiliated credit card.

7. The original application was a direct marketing leaflet sent by the Unison Trade Union to my home address and returned by mail to the Bank of Scotland.

8. I did not retain a copy of the application.

9. I did not receive a copy of the application on receipt of the Credit Card. I submit that this is a breach of s62 Consumer Credit Act 1974 and the agreement is improperly executed.

10. The Claimant has provided two documents it alleges are the original credit agreement and the current terms as varied ( Exhibits D and E ).

11. The documents have been annotated by the Claimant as “orig” and “current”.

a)The document marked ''origl'' refers to the Consumer Protection {Distance Selling) Regulations 2000 and the Financial Services (Distance Marketing) Regulations 2004 which would not have been in force in 1999.

b)The terms annotated ''current'' are dated on page 5 as 10/98.

c)I respectfully submit that this is an error on the part of the Claimant and the document dated 10/98 should actually be read as the alleged original agreement.

8. It is denied that the document presented as the Original Credit Agreement is a true copy of the Credit Agreement. I have not seen this agreement previous to the current proceedings and did not sign an agreement in those terms.

9. The card referred to in the claim was promoted specifically for UNISON trade union members and was branded as such. The document supplied does not reference UNISON at all.

10. The agreement does not contain the prescribed terms and conditions applicable at the time of opening the account (paragraph 9 – 10 of my Defence ) and has not satisfied my request under s78 of the consumer credit act.
a)The agreement does not show the approved credit limit at the time of opening the account
b) The agreement does not reference the specific 0% APR time limited introductory offer. The document states the interest rates under section 10 iii) “The APR is 19.9% for all transactions except Cash Advances for which the APR is 21.8%.” There is no mention of the 0% rate or the time frame for the promotional material, unlike in section 3.3 of the current terms they have supplied.

11. The reconstructed agreement does not contain a schedule of charges in relation to the credit card in section 10 iv the agreement stages “If the bank has cause to communicate with the Principal Cardholder as a result of a breach of this Agreement the Bank may debit the Card Account on each occasion with a charge in accordance with the current tariff which will be pre-notified to the Principal Cardholder”. The charge tariff applicable at the time has not been supplied.

12. I contend that the Claimant (and/or the original creditor) has failed to satisfy my formal request made under Section 78 of the Consumer Credit Act 1974. As a result of s78 (6) CCA 1974 the agreement is therefore unenforceable.




------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

12.To satisfy a request made under section 78 Consumer Credit Act 1974 s78 CCA 1974 request the documents sent must comply with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983) (“the copy documents regs 1983”) and the documents supplied by the Claimants fail to do so.

18. I wish to draw the courts attentions to Carey V HSBC (attached) in the ruling it was made clear that the creditor needs to provide a true copy of the executed agreement, and where the original had been varied either a copy of each discrete term that had been varied or a copy of the current terms and conditions as the contract stands at the date of the request.

19. Carey V HSBC 53(12) states that the creditor must ensure that the contract is “honest and accurate” for the reasons stated in paragraphs 6 – 13 above I contend that reconstituted agreement sent to me is not an accurate representation of the terms and conditions at the time the account was openend.

20 It is respectfully submitted that the document supplied is improperly executed because it is not in the prescribed format set out in under The Consumer Credit (Agreements) Regulations 1983. The agreement was made before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

21. Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since these documents do not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.


I respectfully submit that the terms and conditions applicable at the time the account was opened were not provided until the credit token was provided to the defendant, which was acknowledged by the defendant. Accordingly this is a breach of s61 (1)(a) Consumer Credit Act 1974 as the prescribed terms were not present at the point of signing and the application did not contain any of the prescribed terms. Accordingly pursuant to s127 (3) Consumer Credit Act 1974 the Court may not make an enforcement order where there is a breach of s61 (1)(a) Consumer Credit Act 1974





Default Notice
13. The claimant also supplied template of the Default Notice they state was sent to the Defendant on 7th February 2011 Exhibits F and G

14. I respectfully submit that given the inaccuracies stated in my defence paragraphs 12- 18 The claimant has failed to show me that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.87 & 88(1).

15.0The inconsistencies I have in my defence Paragraph XXX highlighted also lead me to bring into serious doubt that the reconstructed Terms and Conditions are a true copy of the Terms and Conditions applicable to the account or if they are that the Default Notice template supplied is inaccurate and not a true example of what would have been sent.

22. I respectfully submit The claimant has failed to show me that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.87 & 88(1) thus giving a right to demand immediate repayment of the sums claimed.

23. I further contend that the Default notice produced fails to specify the information required Consumer Credit Default Enforcement and Termination Notices Regulations 1983 Regulation 2 and schedule 2 paragraphs 3(a-c) of the Regulations given as refrerred to in para XX of my defence



Conclusion
For the For all the above reasons, I respectfully request this Honourable Court strikes out the claim