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Is it allowed? DC solicitor wants to issue court claim

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  • Is it allowed? DC solicitor wants to issue court claim

    even though Financial Ombudsman hasn't decided conclusion of my 2nd complaint?
    ____________
    In March 2014, I made a complaint to the FO because the DC had gone beyond 13 weeks to reply my request for the documents held on file on their records. The DC informed me that they have to go back to the creditor for the paperwork.

    They dragged their feet and after 13weeks, I thought was an unreasonable length of time to advise me of any delays in resolution of getting back to the creditor and then back to me.

    So because this DC had being reprimanded in Oct 2010 by the OFT on the same matter, I wrote to the FO stating that the DC had again broken Point 2 of the OFT's guidelines "shall keep consumers advised, in writing of any delays in resolution of the investigation".

    Following a prompt from the FO, the DC finally provided the Credit Agreement and T&C and apologised for the delay in responding to my request. I took this apology to be that they accepted that they had not followed the OFT's guidelines again and had I not written to the FO they would have had me waiting forever to answer my request.

    As I now had the photocopied paperwork (wanted to see if the CA was legal), I informed the FO they can close the case as the DC had finally replied me.

    In Dec 2014, I learnt that the DC's solicitor had being told by the DC that my complaint was rejected by the FO is the reason why they can proceed with issuing a court claim.

    I telephoned the FO and they said, there is no record of a rejection because their records state there was never an investigation. This is because even though they did raise a complaint on my behalf, seeing that I informed them in Apr 2014 that the issue had being resolved and requested the case to be closed, there was no further action taken by them.

    So late Dec 2014, I raised another complaint to the FO asking to look into why is a DC allowed to give incorrect information to their solicitor who no doubt will pass that to a judge?

    As I haven't heard back from the FO, I did a follow up on Jan 2015 and yet the DC solicitor insists on Mar 2nd they will be issuing court papers for collection of the 'outstanding balance' plus added court costs.

    My question is:
    In addition to what I've learnt here to place on my defence form, (thanks LegalBeagles team:tinysmile_twink_t2 can I also say that there is an ongoing FO investigation?

    Thanks for reading and look forward to any suggestions and pointers!

  • #2
    Re: Is it allowed? DC solicitor wants to issue court claim

    Originally posted by JaneNov View Post
    Following a prompt from the FO, the DC finally provided the Credit Agreement and T&C and apologised for the delay in responding to my request. I took this apology to be that they accepted that they had not followed the OFT's guidelines again and had I not written to the FO they would have had me waiting forever to answer my request.

    As I now had the photocopied paperwork (wanted to see if the CA was legal), I informed the FO they can close the case as the DC had finally replied me.
    Could you remove your personal details and post up what they sent you as the alleged agreement?

    Originally posted by JaneNov View Post
    In Dec 2014, I learnt that the DC's solicitor had being told by the DC that my complaint was rejected by the FO is the reason why they can proceed with issuing a court claim.

    I telephoned the FO and they said, there is no record of a rejection because their records state there was never an investigation. This is because even though they did raise a complaint on my behalf, seeing that I informed them in Apr 2014 that the issue had being resolved and requested the case to be closed, there was no further action taken by them.

    So late Dec 2014, I raised another complaint to the FO asking to look into why is a DC allowed to give incorrect information to their solicitor who no doubt will pass that to a judge?
    What exactly was the nature of your complaint to the FOS?

    Would be useful if you could give us more information about this account and the nature of your dispute. :typing:

    Originally posted by JaneNov View Post
    As I haven't heard back from the FO, I did a follow up on Jan 2015 and yet the DC solicitor insists on Mar 2nd they will be issuing court papers for collection of the 'outstanding balance' plus added court costs.

    My question is:
    In addition to what I've learnt here to place on my defence form, (thanks LegalBeagles team:tinysmile_twink_t2 can I also say that there is an ongoing FO investigation?

    Thanks for reading and look forward to any suggestions and pointers!
    You are still some way away from filing a defence, a claim hasn't even been issued yet and there's a response you can send to the solicitors, however, we need to know what the history of the account is, what they sent you as the purported CCA and the nature of your complaint to the FOS.

    Comment


    • #3
      Re: Is it allowed? DC solicitor wants to issue court claim

      Hi Flaming Parrot

      Thanks for replying and I hope I've answered your questions because any assistance I'm grateful for

      Originally posted by FlamingParrot View Post
      Could you remove your personal details and post up what they sent you as the alleged agreement?
      Do you know whether there are instructions in a post on this forum how to do this without a scanner? I haven’t got one or will images from my mobile phone do?

      Originally posted by FlamingParrot View Post
      What exactly was the nature of your complaint to the FOS?
      First one was because they were dragging their feet (over 13weeks) in replying my request to see their copy of the CA and weren’t keeping me in the loop of what was happening with them having to go back to the original creditor and request it.

      I had read that they had already being told off by the OFT on this issue (not giving updates on what's happening) and so complained to the FO as I read that the OFT doesn’t have as much bite as the FO.

      The DC sent a copy and went silent until I got a letter from their solicitor in Nov forewarning court action for recovery and during further communications, their solicitor revealed that they can go ahead with issuing because the FO rejected my complaint.

      So, because I was so shocked in that how can a requested closure from me, (as I'd now received the CA from the DC), be seen as a rejection? I asked the FO to look into this statement by the DC because I view it to be incorrect.

      The FO have given me another case ref number but because I've got so many other pressing issues that I haven’t chased the FO or DC on this 2nd complaint.

      Originally posted by FlamingParrot View Post

      Would be useful if you could give us more information about this account and the nature of your dispute.
      It’s a loan balance with the last payment being made Jan 2009 and the first DC letter arrived Nov 2009.

      Reading on various forums and websites that it may be an invalid purchase or credit agreement, I requested more info. The CA seems valid though as was taken out after Apr 2007, has the amount of credit, the rate of interest and how to be repaid.

      Originally posted by FlamingParrot View Post

      You are still some way away from filing a defence, a claim hasn't even been issued yet
      And preparing because just wish to see the end of this paper table tennis on this issue and focus on more family pressing issues.

      Hoping I’ve answered your questions and looking forward to your suggestions on how to upload what the DC sent me.

      Yes, I’m aware that they may be reading this post is the reason why I haven’t named names

      Comment


      • #4
        Re: Is it allowed? DC solicitor wants to issue court claim

        Originally posted by JaneNov View Post
        Do you know whether there are instructions in a post on this forum how to do this without a scanner? I haven’t got one or will images from my mobile phone do?
        This thread may be of help: http://www.legalbeagles.info/forums/...r-details-safe!)

        Pics from your phone should be OK as long as they are readable. hoto:

        Originally posted by JaneNov View Post
        First one was because they were dragging their feet (over 13weeks) in replying my request to see their copy of the CA and weren’t keeping me in the loop of what was happening with them having to go back to the original creditor and request it.
        Normally the FOS doesn't like to get involved in enforceability issues. I realise this relates to obtaining information rather than enforceability as such but it's heading in that direction.
        Originally posted by JaneNov View Post
        It’s a loan balance with the last payment being made Jan 2009 and the first DC letter arrived Nov 2009.
        That being the case, it should be statute barred by now, only just, as cause of action is usually when you first miss a payment, presumably a payment was due in February 2009 and it wasn't made, thus creating the CoA in February 2009, 6 years ago. :clap2: :clap2: :clap2:

        Originally posted by JaneNov View Post
        Reading on various forums and websites that it may be an invalid purchase or credit agreement, I requested more info. The CA seems valid though as was taken out after Apr 2007, has the amount of credit, the rate of interest and how to be repaid.
        Basically you lose the protection of s.127 of the CCA which was repealed with effect from April 2007, however, it looks like this may no longer be an issue for you. :grin:

        Originally posted by JaneNov View Post
        And preparing because just wish to see the end of this paper table tennis on this issue and focus on more family pressing issues.

        Hoping I’ve answered your questions and looking forward to your suggestions on how to upload what the DC sent me.

        Yes, I’m aware that they may be reading this post is the reason why I haven’t named names
        While it's essential to keep your own personal details off the forum, most people do provide full details of the creditors chasing them. They are large companies handling thousands of accounts, they wouldn't have the time or manpower to trawl all the forums looking for someone who *could* be someone they are dealing with, then again they may get it completely wrong! Besides, all arguments used here are based on current legislation.

        Having said that, it looks like you may have come to the end of this letter tennis match and won!

        Comment


        • #5
          Re: Is it allowed? DC solicitor wants to issue court claim

          WOW!

          Thanks Flaming Parrot for that reply!

          Given me lots to go on there

          presumably a payment was due in February 2009 and it wasn't made
          Assumed correctly and none made since (not proud but sadly one of those things).

          When I asked credit file reps (Noodle) a few months ago and they said it's the entry date on credit file which was June 2009 so won't drop off until July 2015 unless they're successful with a CCJ where will stay until June 2020.

          You've given me some more food for thought there though that in fact it's Feb 2015 not Jul 2015 to tell the FO as well

          Will be a relief that it's earlier than expected as got so many family issues that's doing my head in, I can't concentrate fully.

          BTW: Today (23Feb2015) I was going to telephone the FO for any updates when the postman beat me to it.

          A letter arrived, dated 20 Feb, saying they've contacted the DC and when get a response one of their adjudicators will investigate.

          It's the blatant misinterpretation of my accepted request for a complaint closure being turned into a 'rejection' to suit the DC. That's out and out wrong in my view and they need reminding you cannot go around telling lies to solicitors or judges!

          Okay...

          I'm off to read and digest your reply

          Comment


          • #6
            Re: Is it allowed? DC solicitor wants to issue court claim

            FlamingParrot, can I give you a virtual hug???

            After reading your reply again, I went and looked again for the last payment date to see it was 26 Mar 2009 and the default date was 30 Jun 2009 and DC started their demands in Nov 2009.

            Apologises for telling you it was Jan 2009. That month was the last minimum required payment :embarassed:

            I saw where I attempted to make some reduced payments in Feb and Mar 2009, realised that it wasn't going to work and they bullied me off their books shortly after. (Betcha they got good pocket change from their insurers and DC for chucking me off too)

            Anyway, by the time the FO's adjudicator cross questions the DC, it'll be at the SB date

            and yes,

            intend to drag out the FO reply as they're bound to come back to me and there'll be another and another objection from me with anything the DC's says until end of Mar 2015.

            So with all that, I've a question please:

            why are the creditors, credit file and DCs so crafty in waiting 3 months from last payment date to close the account on the creditors' books and entering it onto credit files?

            All 3 are sly, I now see!

            Even more shifty, taking the date on the credit file as last payment? Isn't that against the Limitation Act 1980 Chapter 58?

            If the Act says last payment date then credit file companies should comply and enter that last payment date; not 3months later!!!

            Had me fooled all these years too.

            Geeezzz!!

            My only concern is, by communicating with the DC and their solicitor is that seen as admitting the 'debt'? In all the correspondences I did place 'alleged outstanding balance' (never said the word debt) and in one reply from the DC they admitted they've got no Deed of Novation and have to go back to creditor for my Credit Agreement!

            Asking because, I know already that they do twist words into their favour!

            Either way thanks for making me see the light!
            Last edited by JaneNov; 23rd February 2015, 22:05:PM. Reason: insertion

            Comment


            • #7
              Re: Is it allowed? DC solicitor wants to issue court claim

              Originally posted by JaneNov View Post
              FlamingParrot, can I give you a virtual hug???

              Any time! :_tighthug__by_darkm

              Originally posted by JaneNov View Post

              So with all that, I've a question please:

              why are the creditors, credit file and DCs so crafty in waiting 3 months from last payment date to close the account on the creditors' books and entering it onto credit files?

              All 3 are sly, I now see
              !
              Actually there's a very good reason for that, and it's meant to work in your favour. It may well be the case that you are unable to pay one or two months because of unforeseen circumstances, but then you get back on track and start making payments again. You wouldn't want your account to be closed and a default recorded on your credit file just because you missed one payment, would you?

              The law stipulates that a default notice should be issued before the creditor is entitled to terminate the agreement, and that the notice should give you at least 14 days to remedy the breach. This is to give you the opportunity to keep the account live and your credit file clean if the missed payments were the result of a temporary blip.
              Originally posted by JaneNov View Post
              Even more shifty, taking the date on the credit file as last payment? Isn't that against the Limitation Act 1980 Chapter 58?
              The default date on credit files has nothing to do with the Limitation Act, the reason why the two get often mixed up is that the limitation period for most unsecured debts is six years and defaults also drop off six years after being recorded. Some unscrupulous debt purchasers (notably Lowell) change the default date to the date of assignment and then try to tell you the debt is not SBd for that reason. :rant: :rant: :rant: That is dishonest and they should have their consumer credit license revoked for doing that!

              The default dates are immaterial for the purposes of limitation because, in many cases, people make payments after defaulting on the account. They may enter into a DMP, or offer reduced or token payments. Some people are still paying debts that dropped off their files years ago. They are not SBd.
              Last edited by FlamingParrot; 25th February 2015, 00:54:AM. Reason: typos!!! :(

              Comment


              • #8
                Re: Is it allowed? DC solicitor wants to issue court claim

                Originally posted by JaneNov View Post
                If the Act says last payment date then credit file companies should comply and enter that last payment date; not 3months later!!!

                Had me fooled all these years too.
                The act doesn't say that, what it actually says is the following:
                5 Time limit for actions founded on simple contract.
                An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.
                This is where it gets a little confusing, as we need to establish the cause of action. The creditor would have no cause to take action right after your last payment, they would have no way of knowing you wouldn't be making the next payment, so the cause of action could be consider a month after your last payment, i.e. when you first miss a contractual payment.

                If you feel like a long read, you may want to look at this thread that discusses the subject extensively: http://www.legalbeagles.info/forums/...red#post400620

                Originally posted by JaneNov View Post
                My only concern is, by communicating with the DC and their solicitor is that seen as admitting the 'debt'?
                It all depends on what you say. Making an offer of repayment or a full and final settlement offer would constitute acknowledgment of the debt, however, I wouldn't worry about anything else. I have yet to see a creditor using a letter sent by the debtor as proof the debt is not SBd, most make up phantom payments instead.
                Originally posted by JaneNov View Post
                In all the correspondences I did place 'alleged outstanding balance' (never said the word debt) and in one reply from the DC they admitted they've got no Deed of Novation and have to go back to creditor for my Credit Agreement!

                Asking because, I know already that they do twist words into their favour!

                Either way thanks for making me see the light!
                Deed of Novation? you haven't been following the 3 letter process, have you? :confused2:

                Comment


                • #9
                  Re: Is it allowed? DC solicitor wants to issue court claim

                  Hi again Flaming Parrot

                  Thank you for that pointer to that thread and post by Andy58. Reading it has given me even more knowledge and confidence on my actual SB date.

                  Below are my replies to your replies and also an update.

                  Originally posted by FlamingParrot
                  It all depends on what you say. Making an offer of repayment or a full and final settlement offer would constitute acknowledgment of the debt
                  That’s definitely one thing I didn’t offer, say or write.

                  Originally posted by FlamingParrot
                  The default date on credit files has nothing to do with the Limitation Act, the reason why the two get often mixed up is that the limitation period for most unsecured debts is six years and defaults also drop off six years after being recorded.
                  Even more confident and this is another demo of Chinese whispers on the internet. So easy to get pulled in the wrong direction.

                  Originally posted by FlamingParrot
                  The act doesn't say that
                  Thank you for clearing that confusion up and I happily stand corrected now

                  Originally posted by FlamingParrot
                  Deed of Novation? you haven't been following the 3 letter process, have you?
                  Some what and got confused there too so abandoned after 3rd letter two years ago and account was in limbo until last year when they started their demands again. Which means they ignored the letters.

                  Originally posted by FlamingParrot
                  Having said that, it looks like you may have come to the end of this letter tennis match and won!
                  That’s why wish to go court and ask the judge to tell them this as they seem determined to battle on in defiance perhaps knowing got a few weeks left before SB.

                  Either way, thanks for giving me that confidence boost and facts. As said earlier not proud haven’t being able to payback but don’t see why should pay a 3rd party who will not be passing payments to the original creditor.

                  -----
                  As an update, an FO adjudicator telephoned today and similar to your previous reply:
                  Originally posted by FlamingParrot
                  Normally the FOS doesn't like to get involved in enforceability issues. I realise this relates to obtaining information rather than enforceability as such but it's heading in that direction.
                  they made me aware that if the solicitor insists to proceed, they have to step one side as they have to agree with any judges ruling.

                  (You, I and the DC know that I'm stalling prior to SB):tinysmile_twink_t2:

                  I pointed out this complaint is about their inaccurate interpretation of a complaint being rejected and nothing to do with their demands for an alleged outstanding balance.

                  She asked me what would I like to be done and I said for a big reprimand with an apology to me and the FO.

                  She said she will put that forward to them and if want to I can let the FCA know.

                  Like heck!

                  As I finished off the phone with her, I did just that.

                  The FCA guy was informative too and logged the notes saying if the FO decision goes in my favour, they will inform the FCA and it will be logged against the DC.

                  Saying that, with your knowledge, I’m sure you knew all what's going to happen without me informing you.

                  Giving updates though because I get frustrated when following a thread and then it ends with no updates or what happened in the end. Unsure how many are reading or in the same boat but intend to give updates as I get them because that's one of my traits. I like to finish what I start or don't take the project on even if doesn't always go that way.

                  From their defiance, it seems they will proceeding with their court claim knowing I will be defending.

                  BTW: It’s with PRA Group Ltd (nee Atkiv Kapital) and an MBNA loan but have read that Lowells is one of the worse.

                  Comment


                  • #10
                    Re: Is it allowed? DC solicitor wants to issue court claim

                    Thanks for the updates, Jane, most informative. :yo:

                    As this is an open forum, a lot of people read these threads even when they don't log in or post on them, so everything we post has the potential to be read by tens of thousands over time.

                    Google indexes all the posts and, if you go to 'who is online', you'll often see 'guests' reading old posts because they've found them via the search engines.

                    I wish you all the best of luck ray: and do keep us updated. :typing:

                    Comment


                    • #11
                      Re: Is it allowed? DC solicitor wants to issue court claim

                      Got a phone call from Adjudicator on Thurs (26Mar) says unable to assist (quelle surprise:grin as the FO does not have the power to reprimand how I would desire.


                      Suggest to close case and approach the FCA who has the power to reprimand and give possible compensation.

                      You know what my response was without even being there:tinysmile_twink_t2:


                      Stay tuned...

                      Comment


                      • #12
                        Re: Is it allowed? DC solicitor wants to issue court claim

                        Last update: (if being following this thread and interested in the outcome)

                        FCA says will investigate my complaint and are unable to let me know the results of their investigation because of certain rules and regulations.

                        Reminding a DebtCollector that they are not above the Law, and believe can tell lies hoping no-one would notice, was satisfaction enough for me to pursue as far as could go; regardless whether the FCA gives a reprimand or not.

                        It's not the first time Aktiv Kapital (now PRA Group since 31 Dec 2014) has tried devious methods and am certain won't be the last.

                        This Legal Beagles thread shows that they still haven't learnt to play by the rules and probably never will - even with their name change.

                        :tinysmile_cry_t:

                        Comment


                        • #13
                          Re: Is it allowed? DC solicitor wants to issue court claim

                          what is the "three letter process" ?

                          Comment


                          • #14
                            Re: Is it allowed? DC solicitor wants to issue court claim

                            Originally posted by cupidstunt View Post
                            what is the "three letter process" ?
                            FMOTL stuff ... we don't advocate trying it
                            Debt is like any other trap, easy enough to get into, but hard enough to get out of.

                            It doesn't matter where your journey begins, so long as you begin it...

                            recte agens confido

                            ~~~~~

                            Any advice I provide is given without liability, if you are unsure please seek professional legal guidance.

                            I can be emailed if you need my help loading pictures/documents to your thread. My email address is Kati@legalbeagles.info
                            But please include a link to your thread so I know who you are.

                            Specialist advice can be sought via our sister site JustBeagle

                            Comment


                            • #15
                              Re: Is it allowed? DC solicitor wants to issue court claim

                              Originally posted by cupidstunt View Post
                              what is the "three letter process" ?
                              It is a load of mumbo-jumbo promoted by a bunch of fruitcakes who believe they are only subject to the law if they consent to be - Freemen of England or something.

                              Comment

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