1st Credit Threat

[Never-In-Doubt]

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Morning,

As a result of the previous 1st Credit thread, and the confusion within it, I have created this thread to hopefully clarify the points raised and offer a way forward that should pretty much suit most users here that have received any such threat lately.

1st Credit are your typical DCA, they purchase debts for a fraction of the actual balance and typically make a habit of buying delinquent debts. A delinquent debt could be an unenforceable debt, a debt where there has been no contact/repayments for some time or simply a debt that isn't so simple for the bank to collect themselves. This thread is tailored towards those that have actually received threats from 1st Credit specifically in relation to a HBOS account - based on them purchasing a large stock-pile of accounts over the last few weeks. One key point here, they do not get any historical complaint data when they purchase the account hence they do not meet the condition of their Consumer Credit Licence as they are making undue threats based on a debt they know very little about.

Unlike most DCA's, and contrary to OFT past sanctions, it looks like 1st Credit are back to their usual tricks by issuing threats before actually dealing with the issue at hand; a few good examples are shown within this forum whereby people received a Notice of Assignment (NoA) one week and literally, less than a week later they then received a threat of Bankruptcy (BR); Charging Order (CO) or Statutory Demand (SD). This totally defeats the purpose of holding a Consumer Credit Licence (CCL) which does clearly warn holders of the licence that they cannot bully and intimidate debtors into submission; that aside the rules will be shortly changing to offer us more protection in future when the FSA regulation is disbanded to be replaced by the Financial Conduct Authority.

Now, this is where 1st Credit are running into problems because they assume that they are allowed to jump in making severe (and unfounded) threats before even knowing, let alone acknowledging, the circumstances of the actual debtors account. Such an example would be an outstanding CCA request in line with s.78 Consumer Credit Act (CCA 1974) that the debtor may well have had with the original creditor, or past DCA - the point is 1st Credit do not afford you the time to even explain, let alone afford you the decency of responding to and completing any outstanding complaints registered with the original creditor - remember they purchase the debt NOT the account or complaint history (this is requested separately from the original creditor by 1st Credit, once you complain to them). This is their downfall. The OFT sanctions from 2009 relate specifically to their threatening consumers without actually having any intention of carrying out their threats, something which they now vehementy deny doing because they now take the approach that "we will not simply threaten to take the action stated, we intend on taking the action..." which to anyone reads as {we're bullies}.

So, how do we put up a fight against such aggressive tactics and how can we alleviate their threats as the nonsense they are? That's the easy part. Send a CCA Request in the moment they make contact with you, this protects you and affords you the statutory protection that comes with a s.78 Request, namely they cannot enforce whilst there is an outstanding request. That said, they can issue SD or BR proceedings so you have to play it right to stop them gaining the upper hand, and by doing so will allow us to refer your case to our dedicated solicitor who does have experience at wiping the floor with 1st Credit's legal team but it also allows you to successfully report their conduct which should eventually see them reprimanded again.


The basic process works as follows;

1. You receive a NoA from 1st Credit - Ignore this
2. You then receive a threat letter - Respond with a CCA Request

For now that's all we ask you to do. If for any reason they attempt to enforce this by applying for a CCJ/CO then let us know as a matter of urgency and we'll get you hooked up with our chosen solicitor (AAD Preferred Solicitor). However if they issue BR or SD papers then you only have so much time to respond, in such cases we ask you to let us know asap so we can see what, if anything, can be done to successfully get the application set-aside for you. You only have around 18 days in which to respond to any SD claim so do not delay - the s.78 does not offer the same level of protection against Bankruptcy proceedings which is the sole reason 1st Credit do this - because it is the nearest way to stay within the parameters of their CCL without actually breaching it, albeit their behavious is still frowned upon and I am more than happy to report them to the OFT on your behalf if they cross the line.

We have a few users here (plus I am in contact with over 17 others from other forums) that all beat 1st Credit when they bullied their way to a SD claim so don't panic, they can be beaten and the fact they've been so severely reprimanded with restrioctions by the OFT in the past does help you. This is coupled with the fact I know their head of compliance and if necessary, can ask him to intervene however on such a grand scale as we're seeing of late, this is not really a viable option as I do appreciate they have a business to run. My point is please do not worry. 1st Credit do bark very loud and also try and bully you into submission but the fact remains they mess up just as much as any other DCA (who all seem to miss the little things in life, such as default and termination). They cannot enforce any debt without first defaulting the account and terminating it - have you ever received (from HBOS or any other DCA) a DN or TN? If not, great!

The purpose of this thread is to offer a simplified version of Blue Star's thread here --> 1st Credit | HBOS Mass Assignments

Don't panic, if you get stressed about anything 1st Credit have sent you then please post a reply here and we'll try and help however we can.

[Never-In-Doubt]

Statutory Demands

How to reduce the risk of bankruptcy following a statutory demand?

(a) To avoid bankruptcy reduce the debt to less than £750.

(b) Offer to pay the debt by instalments.

(c) Make a reasonable offer to settle the debt.

(d) Apply to have the Statutory Demand set aside on the grounds that the debt is in dispute.

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy. To defend and apply for set-aside you must do this within 18 days. 21 days is the cut-off for accepting the SD.

To successfully get a statutory demand set aside one or more of the following must be satisfied:-

* The amount stated on the statutory demand is disputed.

* The person issuing the statutory demand also owes money. This is called a counterclaim.

* The person issuing the statutory demand is holding security that equals or exceeds the amount owing.

* The demand was issued in error.

* The amount owing is less than £750

* Execution has been stayed on a judgement debt.

* The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.

* The creditor failed to comply with the rules and prejudiced the debtor in the process.

We would usually be looking to argue and apply for set-aside based on the highlighted points above, in red. So the main 4 steps involved are:-

Step 1 - It may be that the best way of dealing with an SD is to accept the SD because it has lots of important information that you are going to need.

Step 2 - Read it carefully and decide if the particulars are correct. The debt has to be over £750 and not in dispute.

Step 3 - Write to the person named in part B of the SD informing him/her that the debt is in dispute and say why.

Step 4 - Print out an Application to Set Aside a Statutory Demand and an Affidavit in Support of Application to Set Aside Statutory Demand which you must fill in and present at the court within 18 days of being served.

I hope the above helps to answer the main questions on dealing with, and defending a SD claim by 1st Credit.

[Never-In-Doubt]

CCJ's & Defending a Claim

About CCJs

A county court claim is just that, a claim. You have the opportunity to defend yourself if you believe you do not owe the creditor any money or alternatively, suggest a repayment plan.

If you choose to defend yourself there will inevitably be a court hearing, the attendance of which is not compulsory. If on the otherhand you agree to repay the creditor you can avoid the hearing and possibility of a judgement by simply agreeing to repay the debt. The outcome of a county court claim will be decided by the court if you choose to defend the allegations made against you. The court has no other interest than to promote what is fair and reasonable based on the information submitted by debtor and creditor.

County Court Claim Form

You will receive a letter informing you of a creditors claim against you, after which the court will send you a Claim Form. A Claim Form will explain how much the creditor claims you owe them.

How to reply to a Claim Form

Your Claim Form will ask you to detail income and outgoings and will be accompanied by an Admissions Form. On the Admissions Form you can do one of two things:

1) Make an offer to repay the debt, or 2) Offer to pay a lower amount if you think the creditor’s claims are inaccurate.

If having considered both viewpoints, the court decides in favour of the creditor, you will be ordered to repay the debt. Depending on the circumstances and the amount owed, you will either be forced to repay the debt in full or in monthly instalments.

Note: The court allows 16 days from the date of the postmark to return the Claim Form. Alternatively, you may want to submit an Acknowledgement of Service or a Defence Form (N9B) depending on how you want to proceed.

County Court Judgments (CCJs)

In the event you have decided to defend the claim against you in court, you should understand the implications of losing. If the court sides with the creditor, you will incur a Country Court Judgment ordering you to repay the debt. The debt will either have to be paid in full or in part if you can negotitate with the creditor. If you cannot agree the court will decide how much the creditor should receive. A CCJ is extremely bad news for your credit rating and will seriously hamper you ability to obtain a credit card, loan or mortgage.

Note: If you have judgments from multiple creditors the court may combine your debts and into an Administration Order. If this is the case your monthly payments will be shared by all creditors.

Who do I pay?

You pay the creditor who made the claim against you, or their solicitor will accept your payments on their behalf.

What if happens if I don’t/can’t pay?

If you do not adhere to the repayment agreement set by the court, you will be subject to penalities and that means more costs. If you simply can’t afford to make the repayments you can ask the court to:

1) Lower the amount of payments, or 2) Suspend the the order until you can afford to pay.

County Court Judgment (CCJ) records

Unless you pay the full amount of the judgment within one month, your CCJ will be recorded on the Register of County Court Judgments for six years. Most banks/building societies consult the register before agreeing to any credit applications.

What to do if you disagree with a CCJ

It must be emphasised that you should have a solid reason to object to a CCJ. If you disagree with the order you can ask the court to ‘set-aside’ which will grant you another opportunity to reply to the Claim Form. If you cannot demonstrate a genuine reason for the objection you may be accused of wasting court time, the consequences of which are a fine at best and at worst a prison sentence.

If you are confident of overturning the court’s decision and object to the CCJ, the record will be removed from the County Court Register until a new judgment is made.

Further Points

If you receive any claim for a CCJ from 1st Credit then come and speak to us as we may be able to refer you to our preferred solicitor who may well be able to defend the claim for you.

[Paul.]

Re: Statutory Demands

How to reduce the risk of bankruptcy following a statutory demand?

(a) To avoid bankruptcy reduce the debt to less than £750.

(b) Offer to pay the debt by instalments.

(c) Make a reasonable offer to settle the debt.

(d) Apply to have the Statutory Demand set aside on the grounds that the debt is in dispute.

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy. To defend and apply for set-aside you must do this within 18 days. 21 days is the cut-off for accepting the SD.

To successfully get a statutory demand set aside one or more of the following must be satisfied:-

* The amount stated on the statutory demand is disputed.

* The person issuing the statutory demand also owes money. This is called a counterclaim.

* The person issuing the statutory demand is holding security that equals or exceeds the amount owing.

* The demand was issued in error.

* The amount owing is less than £750

* Execution has been stayed on a judgement debt.

* The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.

* The creditor failed to comply with the rules and prejudiced the debtor in the process.

We would usually be looking to argue and apply for set-aside based on the highlighted points above, in red. So the main 4 steps involved are:-

Step 1 - It may be that the best way of dealing with an SD is to accept the SD because it has lots of important information that you are going to need.

Step 2 - Read it carefully and decide if the particulars are correct. The debt has to be over £750 and not in dispute.

Step 3 - Write to the person named in part B of the SD informing him/her that the debt is in dispute and say why.

Step 4 - Print out an Application to Set Aside a Statutory Demand and an Affidavit in Support of Application to Set Aside Statutory Demand which you must fill in and present at the court within 18 days of being served.

I hope the above helps to answer the main questions on dealing with, and defending a SD claim by 1st Credit.

you can also secure the debt so as to avoid a petition.

Personally, the advice would be send the CCA as soon as you can, because s78 does have points where it doesnt apply. For example, s78 does not apply where the agreement has ended or been terminated, so i always say CCA as soon as possible to establish the terms of the agreement which you and the creditor are legall bound by

[PlanB]

Re: 1st Credit Threat | HBOS Mass Assignment

A quick question (delete post if not relevant) is it correct that a debtor can send a creditor as many s.78 CCA requests as they like as long as there is a gap of one month from the most recent, and the creditor must comply? I ask in order to establish what to say to a creditor (eg 1st Credit) which responds with "the OC says that you've already been sent the documents/complied with your previous request and we will not enter into any more correspondence" since some of us may have already sent a s.78 request to HBOS before.

I presume the most recent request is the one that still has to be complied with in legal terms if faced with a SD from 1st Credit.

[Never-In-Doubt]

Re: 1st Credit Threat | HBOS Mass Assignment

A quick question (delete post if not relevant) is it correct that a debtor can send a creditor as many s.78 CCA requests as they like as long as there is a gap of 28 days from the most recent, and the creditor must comply? I ask in order to establish what to say to a creditor (eg 1st Credit) which responds with "the OC says that you've already been sent the documents/complied with your previous request and we will not enter into any more correspondence" since some of us may have already sent a s.78 request to HBOS before.

I presume the most recent request is the one that still has to be complied with in legal terms if faced with a SD from 1st Credit.

read s.78 3(b)... Here --> http://www.legislation.gov.uk/ukpga/1974/39/section/78

Subsection (1) does not apply to—
a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

The answer is within one month.

[kilasuit]

Re: 1st Credit Threat | HBOS Mass Assignment

so in all honesty we could send off new CCA requests every 32 days

[Never-In-Doubt]

Re: 1st Credit Threat | HBOS Mass Assignment

I presume the most recent request is the one that still has to be complied with in legal terms if faced with a SD from 1st Credit.

SD is not enforcement (it's BR rules that it falls under) and hence s.78 does not affect a SD claim - it's different remember.

Don't confuse the two....

[Never-In-Doubt]

Re: 1st Credit Threat | HBOS Mass Assignment

so in all honesty we could send off new CCA requests every 32 days

Yea but a court would then ask why, ie it's not a way to avoid them taking action as technically requesting one one month, to then request another would be an obvious tactic that a court would see through....

Not what I would suggest anyway.

[Paul.]

Re: 1st Credit Threat | HBOS Mass Assignment

SD is not enforcement and hence s.78 does not affect a SD claim - it's different remember.

Don't confuse the two....

er

nope sorry mate, thats not right, an SD is an enforcement step

It is a demand for the full balance payable under the agreement. it cannot be anything but in my view, subject to the facts of the individual case

[Never-In-Doubt]

Re: 1st Credit Threat | HBOS Mass Assignment

er

nope sorry mate, thats not right, an SD is an enforcement step

It is a demand for the full balance payable under the agreement. it cannot be anything but in my view, subject to the facts of the individual case

not according to insolvency site mate

However, a s.78 will not be affected by a SD claim, or are you saying it will>

[Paul.]

Re: 1st Credit Threat | HBOS Mass Assignment

not according to insolvency site mate

However, a s.78 will not be affected by a SD claim, or are you saying it will>

er well if one looks at the restrictions on enforcement, the debtor cannot be made bankrupt!! according to waksman in any event.

Secondly, enforcement is clearly demanding accelerated payments of monies which are not immediately payable, so yes s78 would preclude enforcement.

a DCA tried that "its not enforcement" argument, and the demand was set aside with £1500 costs

[Never-In-Doubt]

Re: 1st Credit Threat | HBOS Mass Assignment

er well if one looks at the restrictions on enforcement, the debtor cannot be made bankrupt!! according to waksman in any event.

Secondly, enforcement is clearly demanding accelerated payments of monies which are not immediately payable, so yes s78 would preclude enforcement.

a DCA tried that "its not enforcement" argument, and the demand was set aside with £1500 costs

Ok, so instead of picking up minute points can you clarify the process so I can edit the post above

I still doubt the accuracy of this however as an SD is commencement of BR proceedings it is not enforcement, enforcement comes when they get the SD and then try and enforce it with the actual BR claim itself.

A s.78 has never stopped a creditor in obtaining a SD - can you please provide the name of the case so we can get the facts straight here.

Thanks mate

[Batman]

Re: 1st Credit Threat | HBOS Mass Assignment

As I said before - I have received the 2 threats of CCJ but they now have my CCA.

I looked everywhere (we save stuff well) and we do NOT appear to have any DN on this pref account that 1st Credit are hunting. I also cannot find any 'termination' letter off HBOS- just the letter from the bank a week or two back which was enclosed along with the 1st Credit intro letter. Not sure if that stands as a termination letter however?

This said - 'we are writing to notify you that Bank of Scotland has assigned all its respective rights title, interest'... blah blah...I bet everyone else got one too eh with the initial DCA intro????

[Paul.]

Re: 1st Credit Threat | HBOS Mass Assignment

Ok, so instead of picking up minute points can you clarify the process so I can edit the post above

I still doubt the accuracy of this however as an SD is commencement of BR proceedings it is not enforcement, enforcement comes when they get the SD and then try and enforce it with the actual BR claim itself.

A s.78 has never stopped a creditor in obtaining a SD - can you please provide the name of the case so we can get the facts straight here.

Thanks mate

Ill ask Andrew about the case, it was one of his.

Firstly, Mr Justice Warren in Hammond v Pro Fit said the insolvency Court is no place for a disputed debt. Secondly, it is inappropriate to threaten to take action that you know you cannot take, such would breach the OFT guidance.

Thirdly, s78 non compliance is not something an insolvency court could look at, lest we not forget that the purpose of a SD is to demand immediate repayment of all monies due so if there is a breach of s87 that action cannot be taken (see para 75 Harrison v Link)

So it would take a brave creditor to roll into court on that one.

Plus i set aside a demand on s78 with 1st Credit, but i am bound by client confidentiality and have been asked not to divulge the name as it would be embarrassing to the professional involved.