Is it safe to contest the CCA?

[Amethyst]

Re: Is it safe to contest the CCA?

Yep I agree, but we should make sure the banks do follow the law as it stands as it is there for a reason (ie to give debtors 14 days to find the money to rememdy a default situation) and I want to be able to confim the actuality to people rather than the theory (it is nice to be right), whilst telling them on the other hand its a technicality that really doesn't increase their chances of any outcome other than having to repay the debt. Getting all these technicalities ironed out in court, although depressing for the people trying to use the technicalities to sort their debts out, does make it easier for others to undertsand the law and the limitations of it, and means we have less people to try and help out of the mess they have got themselves into when they didnt really dispute the debt in the first place.

[middenmess]

Re: Is it safe to contest the CCA?

As you've mentioned in another post on the forum Ame, isn't this just a technicality, and shouldn't common sense be used? i.e if the debtor isn't intending, for whatever reason, remedy it any way, does it matter whether 12, 14 or 42 days are on the DN? Obviously if the debtor does pay in full and gets further action because of incorrect DN, then fair enough.

Therefore..

should we lobby parliament to remove the requirement to issue a compliant default notice in the prescribed format from the CCA as it's merely a 'technicality?'

Better still repeal the CCA 1974 altogether as obtaining a judgement nowadays in a creditor's favour is also not much more than a 'technicality'

[The Debt Star]

Re: Is it safe to contest the CCA?

Better still repeal the CCA 1974 altogether as obtaining a judgement nowadays in a creditor's favour is also not much more than a 'technicality'

I think case law has already done that Midden

[WendyB]

Re: Is it safe to contest the CCA?

If you say so:tinysmile_grin_t:

[Amethyst]

Re: Is it safe to contest the CCA?

The CCA is there to protect people from unsrupulous lenders, not as a get out of debt free card for the masses.

The masses are making it much more difficult now for people to use the cca as protection when they have sufffered true detriment due to lenders actions.

Costa (apologies to Costa as it not his fault but just as example) hasnt stated when he received the letter and I doubt he recalls, but it is likely he received it on the monday or tuesday leaving him 12/13 days to rectify, which he didnt, and he didnt state he had intended to, or attempted to, do so on day 14 either. He should never have been in court on that DN, it gave 17 days. There was no true detriment, he just got in a pickle financially and couldnt keep up the payments.

I have been in a

dmp with Payplan since June this year. Made all payments on time and no significant hassle from any of my creditors except - Tesco. I took out a loan with them in October 2008. At the time I was in a very well paid job and so the loan was for £25,000. However, like many other people who use this forum, my circumstances changed for the worse. The original monthly payment to Tesco was about £400, my reduced payment with Payplan is £260 per month. I believe this to be a reasonable amount!

Got the usual letters from Tesco and Triton. Even spoke to Tesco. I've also spoken to Payplan and let them know the facts.

Account has now been passed to those 'lovely people' at Incasso. Received a letter from them towards the end of November demanding full payment of outstanding amount of loan, £30,000+. Informed Payplan, but also thought it was time to sort the situation myself.

[middenmess]

Re: Is it safe to contest the CCA?

If you say so:tinysmile_grin_t:

DCA's rule OK.:tinysmile_cry_t:

Put down the serfs!

Bring back transportation and the birch!

Tread down the downtrodden!

[Amethyst]

Re: Is it safe to contest the CCA?

Bring back transportation and the birch!

lol, reminds me of the weekend

[The Debt Star]

Re: Is it safe to contest the CCA?

The CCA is there to protect people from unsrupulous lenders, not as a get out of debt free card for the masses.

I do agree with that but it cuts both ways. The credit card companies, banks, finance brokers, loan companies et al were chucking - throwing - credit at people and caused a lot of the mess people got into. true, no one forced anyone to take credit but with slick marketing, high pressure salesmanship and zero consideration of peoples' ability to repay these companies and mis-selling generally, the creditors were banging out the loans.

Now, the consumer is paying them interest and fees. The consumer is entitled to be treated fairly and squarely by the letter of the law. If the consumer is entitled under statute to query the legitimacy of charges or the enforceability of an agreement then they should do so, without any aspersion upon them or claims of "debt dodging." It is one rule for creditors and one another rule for the the consumer, whereas the CCA is there to hold creditors to account.

[pt2537]

Re: Is it safe to contest the CCA?

I was taken to Dr C's file of correspondence which he passed on to his solicitor. He was somebody who wrote letters to the bank and responded to the letters that they sent to him. I have no reason to doubt what he says about not receiving a default notice from the bank. Further it seems to me he would have recalled it. On the balance of probabilities I find that he would have responded to it, for the figures were incorrect. Having seen the correspondence he has written in the past, it seems to me the first thing he would have done is raise the inconsistent figures with the bank. Even today Counsel for the Claimant is unable to explain one of the figures and why it comes, as it does, in the section under Further Action on page 198. The best she can do is to suggest that the bank were requiring a repayment of less than in fact they were entitled to, which I regard as somewhat unlikely.

On balance I conclude that the default notice was not served on Dr C*****, and in those circumstances, if the agreement could be enforced in because the prescribed conditions were complied with, it could not be enforced absent service of the default notice.

Paragraph 22 & 25 of HHJ Worsters Judgment

A default notice can strike a fatal blow to a creditor, who is seeking to enforce an agreement, however, the facts of the individual case must give the arguments you need to win. As i say over and over, its about applying the law to the facts of the case.

If the facts give you the arguments which are substantial then you can run them to trial. But sometimes, there is not enough scope to do so

[Amethyst]

Re: Is it safe to contest the CCA?

I agree, but we must look at individual cases and see if there is actually a case (legally, ethically, realistically whatever) before sending people off into court to test technicalities. Look at some of the cost orders ! I would not be doing my job if I didnt try and help people minimise the risk of incurring further debt through trying to sort out current debt.

[Amethyst]

Re: Is it safe to contest the CCA?

Precisely !




So can people stop with this 'embarrased defence' bull when its completely utterly irrelevant and unnecessary pls. When someone comes on a site like this with a court claim against them we should try find out their situation, any true issues with the debt and the best way for them to handle things, which may or may not be a CCA, not jump in with 'send a CPR request' pants because thats what everyone on Cag keeps saying. Drives me nuts and gets people into deeper ****e than they were already in on far too many occassions.

Paragraph 22 & 25 of HHJ Worsters Judgment

A default notice can strike a fatal blow to a creditor, who is seeking to enforce an agreement, however, the facts of the individual case must give the arguments you need to win. As i say over and over, its about applying the law to the facts of the case.

If the facts give you the arguments which are substantial then you can run them to trial. But sometimes, there is not enough scope to do so

[pt2537]

Re: Is it safe to contest the CCA?

the basic steps i always follow are

1 Obtain the background facts

2. Write to the Claimant, seeking disclosure under 31.14, And an extension of time under 15.5

3 then depends on what happens from No 2.

If the lender doesnt comply then its off to court for disclosure applications. I do not put a defence in untill i have the documents. The reason for this is simply, a party amending his claim or defence is liable for costs of the other party. If you file a defence with inadequate disclosure you could face a bigger bill if you then have to amend.

The rules are there, they are clear, therefore, use the blooming things.

I must qualify that by saying that, by seeking an extension from the Claimant under CPR 15.5 you then have 56 days to file the defence, this allows for time to seek disclosure and file the application, if you only had 28 days you would be screwed, if the Claimant refuses to agree to extend the deadlines then apply to the court, what is the court going to say? in reality you are there saying "your honour, i cant put forward a defence cos the claimant wont give me the docs and extend the deadline for my defence" most judges will give you the extension

you must always acknowledge service of the claim etc.


You must also note that CPR 31.14 only applies to documents "mentioned" in a statement of case etc, so if its not mentioned you cant have it under CPR 31.14 but Part 18 alllows you to ask questions, which can also be another way around the problem as Part 18 is also enforceable in Court if the Claimant dont comply

[Angry Cat]

Re: Is it safe to contest the CCA?

And then after disclosure the defendent then wishes to counter-claim?

[pt2537]

Re: Is it safe to contest the CCA?

CPR 20.4(2) deals with this point,

You can file the counterclaim when you file the Defence

[pt2537]

Re: Is it safe to contest the CCA?

that is another reason why you want disclosure first, so you can decide if there is a counterclaim available to you.

Without disclosure, what is your defence based on other than a bare denial which is not permissible under the CPR

So you need disclosure no matter what