Does requesting a CCA acknowledge a debt?

[FlamingParrot]

Re: Does requesting a CCA acknowledge a debt?

Long time no post, which in this instance is good news! Well, I've had a another couple of letters.. (Note, I did not receive a reply to the letter I sent Arrow 19/02/2014. Everything has been silent since then)

Silence is golden... :grin:

I've just had a letter from Arrow, to confirm management of the account has been transferred to McManus Kearney
And I've had a letter from McManus Kearney asking that I complete and return an income and expenditure form, together with my proposal for payment

Should I write to them and explain I am still waiting on their client's reply to my letter of 19/02/14?

Sending a repayment proposal and an I&E for. Would constitute acknowledgment of the debt :scared: which is probably what they're after. :nono:

I would just say they account is in dispute with their clients when they failed to suitably reply to your CCA request. :thumb:

[dsc20030]

Re: Does requesting a CCA acknowledge a debt?

Thanks guys! I'll drop them a letter and see what they come back with. Thanks for your help!

[dsc20030]

Re: Does requesting a CCA acknowledge a debt?

Well guys, back again! Hope you are all keeping well!

The magic 6 year SB was fast approaching, but I've had another letter from McManus Kearny, enclosing a Civil Bill (From 9, ordinary civil bill, Order 5, Rule 1 (1)

Its telling me that i have to attend court at a date/time to be notified by the Chief Clerk. It goes on to say....

if you wish to dispute this claim against you, within 21 days after the service of this civil bill on you, a notie of intention to defend these proceedings in From 42 must be served on the plaintiff's solicitor and a copy served on any other party to the proceedings and a copy delivered to the courthouse. If you fail to serve such a notice the plaintiff may proceed and obtain a judgement against your in my absence, and without further notice.

The original default was 27/2/10, so is the SB date 27/2/16? I am resident in NOrthern Ireland if that makes any difference?

What does all this mean, and what can I do? Have they started proceedings just in time? or are they too late? There was never a reply to my letter dated 19/02/14.

Help!

[dsc20030]

Re: Does requesting a CCA acknowledge a debt?

Hi all. I've now attached the letter I've received today. I am in Northern Ireland, so i'm guessing the whole court process is a little different, not to mention forms etc

This was my letter I sent dated 19/02/14;

Dear Sirs


Account No: ********


On 13th November 2013 I wrote requesting that you supply me a true copy of the executed credit agreement for the above account. In response to this request I was supplied a document that did not comply with the requirements of the Consumer Credit Act 1974 (CCA1974), as you sent a reconstituted copy, which does not comply with current CCA legislation because without such agreement, I am unable to adjudge my position effectively. I would require a "true copy" of the actual agreement. The recent McGuffick and Carey cases confirmed that a lender should submit upon request a valid true copy of the original CCA and also went on to suggest that both the creditor and debtors name and address are clearly displayed - the Judge dealt with this point at paragraph 60 of his judgement when he said this:


"As a matter of common sense It is difficult to see how a copy of a document can omit the names of the parties. It might he thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. However, as noted above any application of the concept of materiality must not override the requirements of section 78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided"
In MBNA v McCullagh; the Judge ruled;


"The terms and conditions are plainly not a copy of those on the original agreement. There may only be one difference identified (it is difficult to tell from the illegible copy of the original) but that is enough. The obligation is to provide "a copy of the executed agreement". This plainly cannot be a copy of the original agreement. It is not open to the claimant to say that the difference is 'de minimis'. They have to provide a copy of the original (reconstituted or otherwise)"


There are also several other recent cases that alleviate the Carey Judgment such as Hayes v HFC, at Blackpool county court in July 2010. She successfully overturned a charging order on her home. Judge Bell agreed that the reconstituted agreement was not accurate. Then you have the case of Kotecha v Phoenix in which Phoenix attempted to recover a debt owed on a HFC bank credit card. The appeal judges agreed the bank had not been able to supply an accurate copy of the original agreement.


Furthermore, some of the pages supplied appear to be an illegible photocopy of the Terms & Agreement. The prescribed terms as required by section 60(1) Consumer Credit Act 1974, are not at all visible and therefore the documents provided do not constitute a ‘true copy’. As you are no doubt aware, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI/1557) states:


2 - Legibility of notices and copy documents and wording of prescribed Forms
(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the background medium upon which the information is displayed.


The OFT has stipulated the following; Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:


• a copy of their agreement
• copies of some of the other documents mentioned in their agreement
• a statement of account


If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:


• make the debtor pay the debt before they're supposed to
• get a court judgment against the debtor


As this account is clearly unenforceable, I expect you to write back and confirm that no further action will be taken and that the account is now closed and no further correspondence will take place.

Any help or suggestions would be very much appreciated.

[Amethyst]

Re: Does requesting a CCA acknowledge a debt?

It sounds like they might have snuck in under the wire sadly. The default date you mention - is that the actual date of default or when it shows on your credit file from?

Yes the court process is a little different in NI. I think it is more in line with Scotland but I'm afraid I don't have much experience with either.

It sounds like the 21 days is to file your notice of intention to defend ( so equivalent of acknowleging the claim ) but I'll check the forms.

Just for ref - the OFT died in April 2014 and responsibility for consumer credit passed to the FCA.

[Amethyst]

Re: Does requesting a CCA acknowledge a debt?

https://www.citizensadvice.org.uk/ni...rn-ireland-ni/

If you are the respondent and you do not accept that you owe the money that is being claimed, you will be defending the case. You have to issue a counter claim or notice of dispute. You must respond by filling in the form 126A which was sent to you with the claim form.

When the form is returned to the court, the court will arrange for the case to be listed and allocate a date to attend the hearing.

Small claims guide - https://www.courtsni.gov.uk/en-GB/Pu...ms%20Guide.pdf ( of course it is aimed at claimants )

Any chance you could scan in the form N126A as I can't find any sign of it online - the NI online courts info is utter rubbish.... may need to gen up and write a bit of a guide.

[dsc20030]

Re: Does requesting a CCA acknowledge a debt?

Thanks Amethyst. Thanks for your assistance with this.

The default date is the date shown on my credit file, and its also the date noted on the Civil Bill.

Can I tell them the account is still in dispute (for not having yet been provided with a true copy of the credit agreement)?

[Amethyst]

Re: Does requesting a CCA acknowledge a debt?

Yes. If you show me the form ' Notice of dispute' I'll have a better idea what they want. Just reading through the court claim guide for NI it sounds a bit like Judge Judy ... '' if the claim is for things that are damaged, bring them along with you'' lol. I'm sure it's not and it's just a terrible guide, it's just making me chuckle a bit...

When did you last make payment to the debt?

[dsc20030]

Re: Does requesting a CCA acknowledge a debt?

there was no N126A enclosed with the letter.

Maybe they send that once i send the Form 42, to confirm it is my intention to defend?

I've googled and found;

FORM 42
Notice of Intention to Defend a Civil Bill
ORDER 8 RULE 2
[Title as in Form 1]
TAKE NOTICE that the defendant intends to defend these proceedings.
Dated this ……… day of ……… ……… …20 …. …..
Signed ……… ……… ……… ……… ……… ……… ……… ……… ……… Defendant/Solicitor
for the Defendant
Address …. ….. …. ….. …. ….. …. ….. …. ….. …. …..
Notes for Guidance
1. This notice must be served on the plaintiff and a copy served on all the other parties to the
proceedings within 21 days from service of the civil bill.
2. A copy of this notice, together with a copy of the civil bill, must be delivered to the chief clerk at
the courthouse mentioned in the WARNING on the civil bill, at the same time as the notice is served
on the plaintiff.

[Amethyst]

Re: Does requesting a CCA acknowledge a debt?

mmmm, It does sound like that form 42 is the equivalent to acknowledgment, (ie just tick the 'I'm Defending' box with no more info.... but I can't see any inbetween step from that to the hearing... so when do you file your defence ? - I suspect then if the N126a isn't with the forms it MUST be sent to you after you've returned the form 42 ( feeling much like a guinea pig ? lol ) - so you have to complete that and send to the court and a copy to the claimants.

[dsc20030]

Re: Does requesting a CCA acknowledge a debt?

Thanks for your help here Amethyst, it really does mean a lot.

Will I send the From 42 now, or wait to near the end of the 21 days? Does it make any difference whatsoever, that the 6 year SB date will happen in the meantime. I think the last I paid on the account was about 6.5 years ago, but I wouldn't be sure. Certainly 6 years anyway.

[Amethyst]

Re: Does requesting a CCA acknowledge a debt?

I don't think it makes any difference - and tbh - the sooner the case proceeds the better as the less time they have to obtain the credit agreement.

As the 6 years is so tight I think you need to have as much alternative defence as possible ( the CCA - any other issues - PPI/Charges etc ?) but you should still plead it, and plead the date runs from the date you missed your first payment ( ie when they could take steps to recover the full debt) as opposed to when they defaulted the account. They will have to evidence the date of last payment and the default notice etc in order to dispute your case for stat barred so it is another barrier for them to get over. They will also have to get the terms of the account to show when the first point the original creditor could have recalled the entire debt ( ie the cause of action)

Can you get statements for that period from your bank? so you have better in mind when exactly your last payment was.

[dsc20030]

Re: Does requesting a CCA acknowledge a debt?

Ok I'll dig out the old statements and report back tomorrow. I'll also issue the 2x Form 42s tomorrow.

Will I actually have to attend court??

[Amethyst]

Re: Does requesting a CCA acknowledge a debt?

If it gets that far, yes..... if you read that small claims guide, it really doesn't sound intimidating at all, much more down to earth than here.

But they have to find the agreement first, and it is actually quite rare these DCA companies actually go through to a court hearing, usually discontinuing before hand.

Try not to worry, i'm not very good at NI court procedure ( will work on that though ) but I know quite a bit about how these debt firms operate.

[dsc20030]

Re: Does requesting a CCA acknowledge a debt?

2x Form 42 posted, 1x to the court and 1x to the plaintiff

FORM 42
Notice of Intention to Defend a Civil Bill
ORDER 8 RULE 2


BETWEEN ARROW GLOBAL GUERNSEY LTD
Having its office at Belvedere, 12 Booth Street, Manchester, M2 4AW
Plaintiff:

AND: XXXXXX
XXXXXX
XXXXXX
XXXXX
Defendant:

TAKE NOTICE that the defendant intends to defend these proceedings.
Dated this 24th day of February2016


Signed _________________________
XXXXXX
Defendant
XXXXXX




Notes for Guidance
1. This notice must be served on the plaintiff and a copy served on all the other parties to the proceedings within 21 days from service of the civil bill.
2. A copy of this notice, together with a copy of the civil bill, must be delivered to the chief clerk at the courthouse mentioned in the WARNING on the civil bill, at the same time as the notice is served on the plaintiff.