wescot ccj

[furyan]

Re: wescot ccj

they bought the debt in april 2007.
she did admit that they didnt have any paper work on file so may prove hard to get a copy.
she did imply that the debt could be from 2005 which i responded that would make it statue barred and they shouldnt have even been chasing the debt.
i got the impression from the judge that he doesnt like DCA.
the judge did ask if a copy of the agreement was sent to us they stated that it hadnt been asked for but i had actually sent in a subject access request 20 days ago
he did also ask how they can take a claim to court without having a copy of the agreement

[Guest]

Re: wescot ccj

HI

Yes that is a god point TB, could the reason that it is not on your file be that it is over six years old and has fallen off. If this is the case then it will be statute barred and they cannot enforce.

I wonder if a cpr for the statement of account with details of last payment and default date, assignment, etc may be a good idea in addition.

D

[furyan]

Re: wescot ccj

how would i do a cpr
ive already sent a subject access request

[teaboy2]

Re: wescot ccj

You need to send a CPR 31.14 request to Wescott asking for copy of original agreement, default and termination notices and statement of account showing all account activity since the account was opened (loan taken out). Below is a template for you to use:

Dear Sir,

Re: (Claimant's name) v (Your name) Case No:
CPR 31.14 Request

On (date) I received the Claim Form in this case issued by you out of the (Name) county court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2 the assignment*

3 the default notice*

4 the termination notice*

5 Full statment of account showing all activities on the account from date agreement was signed to date legal action was commenced. Along with copies of annual statements sent under section 77a of the consumer credit act 1974.

6 [any other documents mentioned in the Particulars of Claim]*

* delete if not mentioned in the Particulars of claim.

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

# delete if claim for a sum exceeding £5,000.00

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

yours faithfully

PRINT YOUR NAME, AS THEY MAY USE YOUR SIGNITURE TO CONSTRUCT AN AGREEMENT - DCA AND BANKS ARE KNOWN FOR DOING SO IN ORDER TO MAKE IT LOOK LIKE YOU SIGNED AN AGREEMENT.

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

Another questions is - Have you received any annual statements for this alleged account that the debt is for? I ask because section 77a of the consumer credit act 1974 states they most, as failure to do so makes the debt unenforceable.

77AStatements to be provided in relation to fixed-sum credit agreements[F2(1)The creditor under a regulated agreement for fixed-sum credit must give the debtor statements under this section.
(1A)The statements must relate to consecutive periods.
(1B)The first such period must begin with either—
(a)the day on which the agreement is made, or
(b)the day the first movement occurs on the debtor's account with the creditor relating to the agreement.
(1C)No such period may exceed a year.
(1D)For the purposes of subsection (1C), a period of a year which expires on a non-working day may be regarded as expiring on the next working day.
(1E)Each statement under this section must be given to the debtor before the end of the period of thirty days beginning with the day after the end of the period to which the statement relates.]
(2)Regulations may make provision about the form and content of statements under this section.
(3)The debtor shall have no liability to pay any sum in connection with the preparation or the giving to him of a statement under this section.
(4)The creditor is not required to give the debtor any statement under this section once the following conditions are satisfied—
(a)that there is no sum payable under the agreement by the debtor; and
(b)that there is no sum which will or may become so payable.
(5)Subsection (6) applies if at a time before the conditions mentioned in subsection (4) are satisfied the creditor fails to give the debtor—
(a)a statement under this section within the period mentioned in subsection [F3(1E)] ; [F4or]
(b)[F4such a statement within the period of one year beginning with the day after the day on which such a statement was last given to him.]
(6)Where this subsection applies in relation to a failure to give a statement under this section to the debtor—
(a)the creditor shall not be entitled to enforce the agreement during the period of non-compliance;
(b)the debtor shall have no liability to pay any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; and
(c)the debtor shall have no liability to pay any default sum which (apart from this paragraph)—
(i)would have become payable during the period of non-compliance; or
(ii)would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).
(7)In this section ‘the period of non-compliance’ means, in relation to a failure to give a statement under this section to the debtor, the period which—
(a)begins immediately after the end of the period mentioned in F5. . . subsection (5); and
(b)ends at the end of the day on which the statement is given to the debtor or on which the conditions mentioned in subsection (4) are satisfied, whichever is earlier.
(8)This section does not apply in relation to a non-commercial agreement or to a small agreement.
[F6(9)This section does not apply where the holder of a current account overdraws on the account without a pre-arranged overdraft or exceeds a pre-arranged overdraft limit.]]

Note the above only applies from 2006 onwards i believe. But as you they claim the loan was from 2005 then from 2006 they were obiliged to send you annual statements every 12 months atleast.

[furyan]

Re: wescot ccj

will this still work as they already have a judgement against her.

[teaboy2]

Re: wescot ccj

No it will only work if the judge agrees to set aside as that will restart the court process by reverting it back to when the original claim was issued. So you will need it then. There is no way a judge can fail to issue a set aside when you did not receive the particulars of claim and therefore didn't know a claim was made against you. if a judge does then they would be hell to pay as it would be a massive injustice as such a judge would have denied you your legal right to defend against such a claim.

[furyan]

Re: wescot ccj

he ajourned the set aside til 22nd oct
he ordered wescot to provide original agreement before then
he also stated that when it goes back before him on the 22nd he will not only do the set aside but he will deal with the entire case .
so we need to get our defence filed and served once we get this copy of the agreement

[teaboy2]

Re: wescot ccj

Right in that case it looks good for you, but you should send the CPR31.14 request now if hes going to hear the whole case, also request a copy of the original particulars of claim too from wescott. Once you have the response from the CPR and the copy of the original POC then we can admend your defence and submit it.

[furyan]

Re: wescot ccj

i have a copy of the claim already.
got that from northampton ccbc
and the dj has ordered them to send me a copy of the agreement before the next hearing
subject access request was also signed for on the 30th of last month which they should send me a copy of everything they have

[teaboy2]

Re: wescot ccj

ok, well CPR route is still the best, as it may turn up something that they do not send you in your Subject access request. So its better to send and get all you need then to rely on the SAR and not get everything you need. It would also show, that if they did not include something in your SAR but provide it under the CPR request that they were in breach of the data protection act 1998 for failing to disclose it as part of your SAR.

Its better to hit them from two angles at the same time then to just hit them from one angle and hope they fall.

[furyan]

Re: wescot ccj

but if i do need to send a cpr31.14 i have no problems sending

[teaboy2]

Re: wescot ccj

Then send it, as its the correct court procedure prehearing to follow. And it will show them (wescott) that you are legally on the ball, something that may add to their worries.

[furyan]

Re: wescot ccj

do i need to send fee with this cpr 31.14

[teaboy2]

Re: wescot ccj

No its free as its part of the pre court process so the other side is legally obliged to comply with the request and not demand payment.

[furyan]

Re: wescot ccj

cool and thnx