Illegible CCA but going to court

[maec]

Re: Illegible CCA but going to court

No as I wasnt aware of it Im afraid (please excuse my stupidity)

[Angry Cat]

Re: Illegible CCA but going to court

Please, please, do not apologise!

Hopefully PT, will be along shortly, he can advise far better than I.

Remember, the show aint over till the fat lady sings

[maec]

Re: Illegible CCA but going to court

Ive had an official letter from the court regarding the pre-trial checklist (got ten days to sort). Can anyone advise this newbie as to what I need to do?

Is this my time to ask for direction regarding-

1. The illegible CCA
2. The lack of "inception" terms and conditions
3. The missing PPI documentation
4. The lack of a default notice also
5. The amount claimed being the full amount and not just the arrears

??????????????????????????????????????????

[maec]

Re: Illegible CCA but going to court

Can I bump this thread Ive started because I need some advice from those with any experience about this.

Im still a bit bewildered as to how this is still going to court with a document that cant be read. I have made several requests for a better copy but they have stated that this is the best they have.

The trial date is now less than a month away and I am also still waiting the notice of assignement, the notice of default and their witness statement.

(I should state that I havent produced a statement neither because I want to have sight of all documentation first.)

[Amethyst]

Re: Illegible CCA but going to court

Maec, think we're going to need to know exactly where you are at, can you do a chronological list of events thus far.

Strange companies are not just typing out the text from these agreements they are all the same. It isnt highly illegible you can make out what it says and there are plenty of egg agreements about the place to check anything you cant quite make out. So long as you can see the prescribed terms I'd expect it to be ok. The inception terms would be needed to go alongside it, although that wouldnt be fatal as the prescribed terms are on that document.

Need to know exactly where you are and what defence etc you have entered pls and what dispute you have over the claim. (no default notice received so presumably you didnt know you were in default and didnt know how much to pay to remedy the default (so werent given the opportunity) and this claim came out of the blue???)

[maec]

Re: Illegible CCA but going to court

Thanks for your interest Amethyst, here is a full (and lengthy, sorry!) rundown-

In January I received a county court claim form whose Particulars of Claim stated

"The Claimant is the Assignee of a debt(s) from Egg Banking plc, credit card reference xxxxxxxxxxxxx. Notice of Assignment having been given to the Defendant in writing. Despite demand for payment xxxx.xx remains due. The Claimant claims xxxx.xx and interest under s.69 County Courts Act 1984 and costs"

The Claimant in this matter is Cabot Financial (UK) Limited, with Morgan Solicitors handling the claim. The debt relates to an Egg credit card.

I had, prior to this claim form arriving, made requests for the CCA (to other DCA's but it hadn't been produced.

A week after the claim form arrived I made a CPR 31.14 request asking for the agreement (including documents and conditions constituting the agreement), the assignment, the default notice and the termination notice.

A reply to this request was received from Morgan Solicitors 5 days later stating that they have asked the assignor for the CCA and will forward this when received. Morgan solicitors state that a copy of the assignment was in their own storage system and would forward this in a few days. The default notice was, in the opinion of Morgans Solicitors, "not required because this is only needed if the Claimant wished to
a. terminate the agreement
b. demand earlier repayment of any sum
c. recover possession of any goods or land
d. treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred: or
e. enforce any security
The Claimant does not wish to enforce any of the circumstances listed in Section 87 of the act. Accordingly neither the Claimant nor the Assignor was required to send a default notice under that Section. The sums claimed by the Claimant as Assignee of the debt relate to arrears only"

Morgan Solicitors also state "there is no termination notice because the agreement has not been terminated."

Enclosed with this letter were the claimants case history, claimants statement of account and representations of two letters, both of which giving notice of Assignment.

The first representation letter states "The Cabot Financial Group has recently bought the account you held with Egg and were now responsible for answering your queries and receiving payments. According to our records you currently owe £xxxx. Please contact us as soons as possible to discuss the options for repaying your account." This letter is not signed and no details regarding its recorded delivery are provided.

The second representation letter states “Your account is currently in default. Despite previous correspondance and requests from us, you have failed to settle this account. Accordingly the outstanding balance is now payable immediately.” The letter goes on to mention pre-action protocols. Once again no information regarding the delivery of this has been provided.

Three weeks after this letter, a further letter was received which provided advanced disclosure of
Statements of Account
Account Sale Agreement ('the assignment') [redacted in places]
Extract of Raw Data provided to the Claimant by the Assignor (Egg)
The letter states that Morgan Solicitors were still waiting for the Credit Agreement from the Assignor.

Shortly after this reply a further letter was provided enclosing the poor quality copy of the Credit Agreement (posted on this forum). The letter ends asking , if wished for, to discuss settling this matter.

In due course and after the aforementioned correspondance, I produced a statement of Defence using the embarrassed defence reasoning that the Particulars of Claim are vague and insufficient. The purported contract cited in the Particulars of Claim has not been provided. No evidence has been served in relation to the scope and nature of the defence along with proof of the outstanding amount has been provided. Furthermore no letter before action was sent by the claimant as required under pre-action protocols,

The defence also mentioned the CPR request and its lack of being fulfilled along with the need for a default notice.

The allocation questionnaire was filled in and provided to the court and claimant. The claimants allocation questionnaire was also received. It is noted that the amount in dispute had slightly increased when compared to the amount mentioned in the particulars of claim (presumed to be interest added). In this document the claimant states the no pre-action protocol was required and "now been provided with all the documents on which the Claimant intends to rely." At this point the documents provided did not include the notice of assignment and the default notice (only representations of such letters) and an (in most parts) illegible credit agreement.

The case was then allocated to fast track by the court and a date set for the second week in November, with a timetable for disclosure and witness statements set. Disclosure deadlines were met but to date neither myself nor the Claimant have produced witness statements (the date set for this was in August).

I requested copies of all documents contained on their disclosure list as well as asking to have sight of original documentation at their offices.

A true copy of the default notice or the notice of assignment has still not been produced to date. A letter sent at the time of disclosure by Morgans Solicitors states “we have requested a copy of the default notice from Egg Banking plc.....we hope to provide this to you within 4 weeks (i.e. end of July 2010). This contradicts their earlier correspondance which stated that there is no need for this document.

In regards to the notice of assignment, the same letter states “we do not agree with your assertion that the original Notice of Assignment is required for us to prove on the balance of probabilities that you have received notice of the assignment.” Going on to state that they will rely on the representations of the two letters instead.

In regards to the credit agreement they state “to the best of our knowledge the original has not been retained by Egg Banking plc. We shall be relying on the copy provided.”

Two sets of paperwork relating to terms and conditions were provided but neither relate to the inception terms. No documents relating to PPI were provided. A large amount of statements were provided containing information including PPI payments.

Last month, a pre-trial checklist was produced for the court and no copy of the pre trial checklist was provided to me by the defence.

No further correspondence has been received other than a letter from the court in preparation for the trial.

I hope you dont mind how long this is but I didnt want to leave anything out just in case.

In summary-

Particulars of claim - The amount claimed is the full amount of debt whilst correspondance state that the debt sums claimed relates to arrears only

Credit Agreement - eventually provided but as shown is of very poor quality and large amounts is illegible. Asked to see the original in person but claimant stated that the copy is all that is available. No inception terms and conditions have been provided.

Notice of Assignment - the claimant is relying upon representation letters.

Default Notice - originally stated not to be needed due to arrears being claimed only, further letters request further time to produce the default notice. To date this has not been produced.

(No record of postage/delivery has been provided for the notice of assignment or default notice being supplied).

Neither myself nor the Claimant have produced witness statements to date.


Im extremely grateful for your time and effort in advance.

[Amethyst]

Re: Illegible CCA but going to court

reading

[Amethyst]

Re: Illegible CCA but going to court

How much is the claim for ?

Do you still have use of the Egg card (well obviously not but was it actually terminated (ie you cant use it anymore) or was it just lapsed because you went over limit and couldnt use it any more, or you didnt have much debt on it, just stopped using it so the balance was only arrears ? Just thinking reasons why the account may not actually have defaulted and why it may only be arrears they are claiming...so a bit more info needed on the end of the use of the account (statements might give a good idea) and how much the claim is. Do you still get statements etc from egg ?

[maec]

Re: Illegible CCA but going to court

Im very indebted for even reading such a long post Amethyst.

I no longer get statements from Egg. The last statement I received showed arrears (i.e. minimum payment due) of £1300 in June. 2009 on a total balance of over £11,400. The credit limit is £11,000.

The claim is for over £12000 so Im presuming interest has been added since.

[Amethyst]

Re: Illegible CCA but going to court

SO could be arrears then, £1300 minimum payment missed for over a year? if they havent terminated. Though how the debt is with Cabot if the agreement isnt terminated is a bit beyond my brain at the mo.

Is the only issue is one of the assignment ?????

Can you put up your CPR requests and the ''embarassed'' defence you have put in and docs they have sent back.

Do you want to tell us a bit more about your own circumstances (property/other debts/ finances)

Have you read slater v egg ?

In fast track, are you aware of the costs risks ? (just checking you have considered all outcomes to the case properly)

[maec]

Re: Illegible CCA but going to court

Amethyst, I am not in a great financial situation at all at the moment. I have two other credit cards with similar amounts owing along with a large overdraft oustanding. I have no savings and no wealthy family members to borrow from plus there is no equity in my house currently. I am aware that they could add up to £5000 worth of costs to the amount owed and currently dont know how I would finance this if judgement was ruled against me. Should this be the case what happens, do I have x amount of days to find the money and what happens if I cant?

The points I would like to consider are-

1. the arrears issue/termination point

2. are Cabot correct in bringing this to court in their name

3. the credit agreement being so poor quality how can they uphold its contents when they cant be read

4. the representations of a letter regarding default and a letter regarding assignment not being legally correct

5. the mis-selling of PPI and charges applied

6. The lack of terms and conditions from inception

I will put up the CPR request later if I can borrow a scanner from a friend.

I noticed an earlier thread between yourself and "Morgan" regarding the arrears issue but there doesnt appear to have been anything posted regarding how it concluded.

Admittedly I have buried my head with this but I have had one hell of a year up to now!

[maec]

Re: Illegible CCA but going to court

Also is it unusual to have not received a witness statement with the trial only over two weeks to go?

[paulb2905]

Re: Illegible CCA but going to court

Maec,

Hiya sorry to hear your in a bad situation and i completely understand the emotional stress and strain this puts onto you as im in the same postion.

I will be honest with you it looks like you have a pretty good case, on the face, but at the end of the day its going to come down to your ability to argue your case to a judge, who is most likely to be prejudiced against you and even more likely to have little or no understanding of the Consumer Credit Act.

IF you decide to contest this you will be much much much better off if you can obtain some legal aid - this will depend on your situation whether you qualify or not though.

IF you win your case it may clear this particular debt (or make it unenforceable) but you have to be prepared for the outcome the other way ie losing.

Outcome of losing is
a) Costs awarded against you payable immediately plus
If your not able to pay the costs awarded against you then there is a good possibility of being forced into bankruptcy
b) Amount of debt payable in determination with the finding of the judge - this may be 1) or 2) then 3)

• 1) payment order
• same as a monthly payment plan determined by your Income & Expenditure
• 2) they pursue a Charging Order (turns an unsecured loan into a secured loan)
• this is in effect an additional mortgage which becomes payable when you sell your house - it sits there until the property is sold
• 3) then a Sale Order
• this is where you are forced into selling your property.

Bankruptcy is legally discharged after 1 year and off your records after 6 years plus it has the bonus of wiping ALL your debts and if you are "forced" into it the company that does enforce this pays the bankruptcy costs (saving you upto a couple thousand)

Obviously a lot of things depend on your circumstances, like family living with you, age, health.

Hope this clarifies the position (im sure if something ive quoted is wrong it will be corrected) and apologies if anything here is scary it wasnt intended to be!

Apart from defending this you also have the option of the IVA if your in full time work (DMP - Debt Management Plan is out as debts exceed £15k)

Re the Witness Statement it should be received by you (and the court) a MINIMUM of 3 days before the hearing - you could write to them clearly stating this if you liked but its pretty common to receive it anything from few days before to on the day of the hearing tbh - it appears the rules are only used as guidelines by both the sols and the courts ie they have NO TEETH to them!!!! (that was from a solicitor) and new "rules" are due out soon too......

[maec]

Re: Illegible CCA but going to court

Thanks for laying it out plainly Paul, it helps to know the full outcome.

Worst case scenario is something I know I must be prepared for and this would be judgement against me and the judge ruling that costs should be payable immediately.

Does that mean on the day or within a set period do you know?

[maec]

Re: Illegible CCA but going to court

Ive spent the night going through statements and they show that 50% of the amount claimed is from PPI charges and unpaid direct debits charges.

Can you give me any advice as to how I should make the forthcoming trial aware of this and should judgement go against me, ensure that these amounts are deducted?