wilchy vs EGG/Bryan Carter Need help with AQ

[The Debt Star]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

wilchy, following my first post on your thread I emailed my FOS adjudicator th following question:

Dear Mr X,

I have a quick question concerning FOS adjudications generally.

Can a creditor take legal action to enforce a debt while you, the FOS, are investigating a disputed account?

I have just received this response fom him:

Dear Mr Y.,

I am writing further to your email dated X November 2010.

I would advise that although this service would prefer a business not to pursue collection of a debt whilst investigations are ongoing at this service; it is not something we can instruct it to do. Under such circumstances - at the consumers request, we will ask the business to cease action pending conclusion of our investigations, but as advised, it does not have to act on this request.

I trust this clarifies your query.

Yours sincerely
Mr X.
Adjudicator
Financial Ombudsman Service

Upshot is that while FOS can't STOP the creditor sueing your ass, they WILL nonethelesswrite to them formally requesting thy don't do it. I suggest therefore that you ask your FOS adjudicator to write to both Bryan Carter and the OC with this request and that you obtain a COPY for your file and that this be exhibited in court if it goes that far.

DS

[wilchy]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

Thanks for that DS much appreciated! Will fly off an email later.

Anybody got any more opinions on my aq?

[Amethyst]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

AQ - http://www.hmcourts-service.gov.uk/c...forms/n149.pdf - small claims

The form is quite well worded and self explanatory so if theres any problems with questions on there just ask.

I don;t think there is any need for further directions. BC wont have the foggiest about the PPI claim. You have spelt out the situation in your defence, I'm not sure I agree the entire claim shouldnt have been bought, certainly the PPI part of the debt shouldnt be in court as its with the FOS which you have stated. But you have mentioned the £1 offer and payments. You'll need to do an income expenditure sheet later. Having read your defence again I don;t think you need to amend, I think you can expand further in pre hearing witness statements. You are a LiP so it wont be expected you have every detail correct and I'm glad you went with an individual factual and honest defence rather than some technical over legalised bull lol, few errors in it but nothing overly important. I'd probably have left a fair bit out but again it isnt a problem. I very much doubt their claim will be struck out but judgment awarded on the non disputed bit and installment order awarded and the remainder stayed pending the FOS.

Debtstar has found out some decent info for you so follow that up.

[wilchy]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

So a good chance a CCJ is on its way in your opinion?

[The Debt Star]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

So a good chance a CCJ is on its way in your opinion?

Hmmm...that's the worrying bit. PRESUMABLY had the PPI element in the principle been in dispute ie not quantified with stat interest etc, then the court wouldn't be able to have made an order.

But, if Egg does not accept wilchy's PPI claim (which clearly they DON'T because it has gone to the FOS), then, presumably, the 'amount' of PPI being claimed from the principle loan remains in dispute?

The court is not being asked to settle the PPI claim, i.e. the FOS letter you are about to request, asking Egg not to take you to court while the PPI claim is being investigated by them, could prove very useful indeed.

Honestly, is Bryan Carter really going to bother getting bogged down in these techicalities?

[Amethyst]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

Unless the PPI creates an unfair relationship or causes an iredeemably unenforceable agreement (by virtue of being in the wrong box etc on loan agreements and so forth - which isnt the case) I don't see why the entire debt should be barred from enforcement because of a dispute on a small part of it.

[The Debt Star]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

yes, but the PPI element is unquantified, thats what I mean, and if that is unquantified how can the court make an order for the repayment of a definite amount on the loan principle? Maybe it can, I dunno.

I know wilchy has quantified his claim for mis-sold PPI, but that's not the same thing; his claim hasn't been adjudicated yet by the FOS or admitted by the OC. He may be awarded more or less PPI than he has calculated and in which case the court order ould be for the wrong amount. Can you see what I'm trying to say?

[wilchy]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

Thanks both of you for giving me hope!

Just a quickee, I have filled in the aq but do I send a copy to Bryan Carter?

[Amethyst]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

Yep completely understand, the ppi and any interest paid on ppi to date should be removed from this claim as it is in dispute. Any interest awarded to wilchy if the ppi is found in his favour by the fos doesnt form part of the original debt. The bank/courts etc should quantify how much the ppi and interest charged on ppi that has been paid and forms part of the debt is, Wilchy can only put his calcs and/or FOs's calcs forwards. The court can stay the entire claim if uncertain, or can put judgment on the undisputed part of the debt and stay/ chuck out the other bit but if fos find against wilchy, they have to be able to return to get that part of the debt as well, hence I think it would be stayed (if FOS pull their finger out and resolve this in the meantime then yes that bit should be chucked out and the creditor should pay up the additonal interest owing on having unlawfully had wilchys money)

That make sense? Thinking otherwise you could have an argument over £20 on a £10k debt and the creditor can't enforce any of it until the dispute is resolved, which doesnt seem fair does it?

Yes always polite to send copies of documents to the other party when submitting in court.

[wilchy]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

OK thanks Amethyst

[wilchy]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

Dont know if this is of any help but heres a link foolishgirl found on a judgement in respect to PPI (incase you missed it on my CAG thread)

http://www.consumeractiongroup.co.uk...post2717217its

got some pretty good info in there. Also FG said about this:

Most of the aq is easy to complete but you may want to ask for directions for the Claimant to produce any information you need to compile your case. eg. if you basing your defence on the PPI issues, you may want statements, disclosure of commissions obtained etc.

Just thought I would throw this in as well. Dont know whether it will be of any use.

Goona be dropping the aq into the Court tomorrow morning.

[The Debt Star]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

The court can stay the entire claim if uncertain

wilchy, try and persuade the court to do that mate.

[The Debt Star]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

The CAG link is banging on about unfair relationships...

[The Debt Star]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

Is anyone else surprised Bryan Carter pushed forward on this? There is a good chance the court might be "uncertain" and/or can't be ar5ed to calculate the PPI claim and might prefer the FOS dispute to be settled first. The claim is not of course for £20 it is for hundreds of pounds. I can't help but feel that Bryan Carter issued proceedings on his bulk processor & without knowing about / considering the PPI claim...

[Amethyst]

Re: wilchy vs EGG/Bryan Carter Need help with AQ

I'm always suprised Bryan Carter takes any claim to court.