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Re: Please shed some light to file a "Defence"

PostPosted: Mon May 11, 2015 2:32 am
by setmefree21
WOA these are so useful info...thank the lord you've found me

Online applications was a 1 page downloaded version, with my personal details, financial situation was not really true, as I was unemployed at the time, but I said I was working.

NO IP address was supplied

Statements spending mostly were online, paypal, SDRO for a fine but the FINE was not in my name (from memory), and the rest used for shopping. Payments made to the account was from BPAY

That is correct, they did filed Statement of Claim to the Court, and I have filed my Defence, we went in to Pre Hearing Conf on the 17 May, but did not agreed to settle because I have requested that it is my WISH to see the Deed of Assignment, therefore the NoA was mailed to me POST Pre Hearing conference. But as per Section 13 of the Privacy Act. Can their defence be "I had been Default by the O.C, and that the O.C had notified me of the Default?

Furthermore, I have check my Credit File the amount listed in my credit report was only for $225.00 by O.C on the 21/11/2012, on the same day Credit Corp also had their name to this Default Listing. But their NoA said GE assigned them of the debt on the 14 Feb 2013. Does that mean the Default Listing itself also in breach of Sect 88 of the NNC and the Privacy Act

The Default letter had an amount of $224.90 (not biggy) but still a discrepancy right?

Yes they have provided their licence and COSL

I believe they have not file an Affidavit as they were hoping to scare me off with the NoA and hoping to settle before the Hearing date infront of the Assessor/Magistrate

As per the Pre Hearing Conference, both parties have by the 9 June 2015 to file. According to the Small Claim Hearing procedure, parties are to file Original Witness Statements & documentary evidence with the court.

Re: Please shed some light to file a "Defence"

PostPosted: Mon May 11, 2015 11:21 am
by sparkie72
There is alot to learn when one starts to play the game, people on you tube make it sound easy!
Okay the Loan Application Form (LAF) normally has the figures fudged up, to make it appear that you have the capacity to pay the loan back, were the figures that was supplied true and correct as to what you supplied?

With the statements, if they ask you did you spend $$$ at a servo on Monday the 20th of April 20XX as shown within the statement, have you any idea how to answer that question?
Can they evidence where the Bpay payments came from?
Remember these two important Maxims of Law when you answer the above questions;
i) one shall not testify against one's self;
ii) the burden of proof lies with the accuser.
Also read s.13 (g) of the Debt Collectors Guidelines (DCG),page 27.

I say that due to the O.C not sending you the letter of assignment before Credit Corp appeared on the scene, that it maybe misleading or deceptive conduct or unconscionable conduct under The Australian Consumer Law
Furthermore if you where to pay Credit Corp. and then the O.C demanded money from you, then you tell the O.C that you paid Credit Corp. the O.C can easily say why did you pay them as we never employed Credit Corp as our agent.
Read s. 11 (m) of the DCG, page 25. Note the word must.

Section 88 of the NCC is mainly for the O.C as they have to take those steps to allow you to enter hardship or make different payment plans etc. They normal state how much is outstanding like the $225 in your matter, and if you don't steps to make a payment etc they may accelerate the loan to the full amount without further notice to you,normally this is in the third letter from the O.C.
I'm guessing they did this third step pursuant to s. 88 of the NCC? Or the O.C may have breached s. 88 of the NCC if they did not sent you the three notices of default, get them to prove that they did sent all three notices.

If you can make a copy of those entries appearing on you credit report, and redact the other entries that appear on your C.R, use that as an Annexe in you written statement as that appears it could be a breach of the privacy code, also state that you have never had dealings with Credit Corp at the time they appeared on your C.R, where is the consent form that you signed that allowed them to access you C.R., as this is the only way they can appear on your C.R.

The fact that they supplied their AU credit licence number and that they are a member of COSL, is proof that they purchased the debt, but as I am sure you are aware by now is that the O.C must inform you of the assignment, which from what you have stated in your posts they never did, until after your pre-trail conference. I read on you earlier posts that you claim that you didn't receive it from them, but as you admitted you received something else from them they then claim the LOA was included within what you admitted you had received. I'm I reading that correct??
Remember an Agent can not prove they are an agent of the Principal, only the Principal can prove who their agent is.

I think I can see their little trick with lodging the matter as a Small Claim. In WA small claim cases the evidence rules are very relaxed, so I think the same applies over in you state.
1) They will hope you don't appear so they obtain a default judgment,
2) They will not get costs of their legal consul as in the small claims you can have legal consul but you can not seek costs of the consul, but as they only paid about 4 cents on the dollar and if they win in court they will be awarded the full amount, about 1000% profit!!
3) As they can not get anyone to testify in an Affidavit form they can make un-swore statements to support their claim and use the court process to obtain their judgement.

They way I see how you could over come this by using the Local Court Rules 2009 Part 2, Division 2 Transfer of proceedings.
Read s 2.3 Transfer of proceedings from Small Claims Division to General Division: complexity, difficulty or importance of matters in dispute.
If you can prove that the Claimant breached the Commonwealth Acts,ie NCCPA/NCC/Privacy Act/
Competition and Consumer Act etc, the State courts can not rule on Federal Law so you have to motion the court to move the matter to a court of competent jurisdiction to make the necessary rulings as to their breach's, as you have a set-off, not a counterclaim, due to their breach's. I trust this makes sense.

What documentation did you request from Credit Corp when you received their first mailing?
Were any of the items requested the same as in s. 11 (c) in the DCG, page 24.
I know they supplied C.C statements, how long did that take for Credit Corp to supply them to you?
I ask as I'm trying to see what breach's Credit Corp have done and see if any penalty units apply to them.

Re: Please shed some light to file a "Defence"

PostPosted: Tue May 12, 2015 10:33 am
by setmefree21
I was unemployed at the time but put down that I was still at my old job - can we use " NCCPA s128(1) - Obligations Licensees Must Satisfy Before Providing Credit " and "CCPA s129 - Assessment of Unsuitability" " NCCPA s130(1) - Reasonable Inquiries to be Made" that the O.C did not taken reasonable steps to ensure that the consumer can repay for the debt? OR are am I putting myself at risk "fraudulent loan application"

In term of answering those questions ie : Did you apply for this Credit Card (CC)? and did you spent money on date xxx xxx xxx. I don't know what to say....I am thinking of saying "I don't recall, signing for anything, and wish to see any original agreement they have upon this account so I can properly identify my signature" - my memory does not serve me that well, I wish to see those evidence to properly identify my signature.

Do you think they will submit this NoA as part of their documents? even if they do, the date on that clearly stated it was not served prior to them putting this Claim forward. which means they have in fact have breached the ACL, by false representations, by prediction and and opinions with no reasonable ground.

Yes I am 100% sure Credit Corp has breached the Privacy Act as I can see they keep accessing my file - and I DID NOT consent them to this.

That was correct, I only received a copy of the NoA on the 18 Feb but it was not signed by the O.C, my argument is, those were just typed up letter from Credit Corp claiming the debt, and it is not a lawful NoA as it DID not came from the O.C

You are 110% correct, I can see that what they were doing, they were hoping for an easy ride.

If a debt relates to consumer credit regulated by the NCC, specific obligations are imposed on creditors
to provide information and documents on request. These are set out in the following sections of
the NCC:
• s. 36 (statement of amount owing and other matters) - CC statements
• s. 38 (disputed accounts)43 - YES
• s. 83 (statement of payout figure)44 - THEIR OWN STATEMENT with THEIR OWN INTEREST
• s. 185 (copies of contracts and other documents).45
- Online apps, Financial table, terms and conditions

7 Feb was the first letter - they provided documents on the 18 Feb, that is 12 days

So I think my next step is to finish my Witness Statement and file it by end of next week.

Re: Please shed some light to file a "Defence"

PostPosted: Tue May 12, 2015 11:40 am
by sparkie72
The NCCPA took effect on about mid 2009 early 2010, so if your application was before that time it may have been regulated by the UCCC, [Not the UCC, as the US Freeman talk about filing].
If you made up some items on the LAF I would not really mention that.
Yes you are correct about using the word " I don't recall" . Hilary Clinton is famous for using that group of words.
It is up to them to prove that you used the card etc.
"Mmm it has been quite a long time since 200X and I honestly don't recall the events that occurred on that day."
I'm guessing you still have the card and or destroyed it, either way I hope you did not return it to them.

They may show that the NOA was sent to you before Credit Corp, but as it was not send via registered post how can they prove that they did. Things can go missing in the post but something important that those papers should be sent registered post. They could state that they posted it within an Affidavit, but you can write your own Affidavit stating that you did not receive the NOA, if required.

The O.C has to notify the debtor of the assignment, before the acquirer can become the Credit Provider, due to this step not happening you have no Idea whom you are dealing with and how they become authorized to make demands for payment, could be some internet scam form Nigeria!
It happened in the US in the 80's, home owners received letters to make their payments to the account listed in the body of the letter. A lot of people made the payments and weeks later the lender gave notice that they were late on their house payments, the homeowners explained what happened but the banks said that should have checked first before changing the payment details. That scam made the creators of the scam millions of dollars in a mere few weeks.

You could make a complain to the OAIC about Credit Corp appearing on your C.R.

One should note that s. 83 of the NCC (payout figure) does not apply to Credit Cards.
Over the times the lender claims that the application form, terms and conditions, even the phone number that was used to activate the C.C is the contract. I said the application form, T&C's are before any contract is established of entered into. They want you to testify/admit against yourself.

You mentioned their own statement and interest, if you signed a contract with T&C's attached to it, how can the interest increase, where you notified of the increase? Do their statements have their corporate logo or the O.C logo at the top?

Sounds like you are getting on top of it, keep us posted and if you have any questions I can get you my opinion, as that is all I can do, based on my own firsthand knowledge and experience's.

Re: Please shed some light to file a "Defence"

PostPosted: Wed May 13, 2015 1:32 am
by setmefree21
I don't know where and how to begin to THANKS you enough (big HUG). I have lost my sense of direction and was about to give up and and give-in to their "scam" and tactic. But now you have given me that extra encouragement to continue and will appear at the Hearing.

The application form is post 2010 so it is govern under the NCCPA

If they said, well you used the card that mean you have agreed to the T&C and accepted the offers. My defence again will be, "then I wish to see proof of the first transaction and/or any evidences relating to this"

The CC has been destroyed

My Defence in relation to T&C, applications, and any related items will be - I don't recall signing any paper work in relation to this contract/agreement - BUT you used the card - Well then I wish to see proof of the transaction.

The last statement was from CreditCorp, they charged me 29.49% interest - they are a third party interloper, therefore my defence again - I don't know who you are, I have no contract with you. You MUST prove that we have an agreement in place between my living self and you.

Thank you for your kind words, I would like to think that I am on top of it, but there is a little bit of me that "not too confident". I will ask my friend which is well spoken and more confident to represent me at the Hearing. So we are working on our defence responses, and hopefully we can cover all angles

I will put in my Witness Statement or Affidavit that CreditCorp has breached the Privacy Act by accessing my Credit File many times over, they also breached the Debt Collector code of conduct by misleading me in believing that I owe them money without providing lawful documentations, and wish to move this matter to the General Divisions Court.

Is it OK for me to PM you my draft witness statement for further inputs?

Re: Please shed some light to file a "Defence"

PostPosted: Wed May 13, 2015 3:25 pm
by sparkie72
Hello again, and thanks for the kind words.
I'm pleased that you have found that extra "thing" to go that extra step.
The more people that step up and use the court process, it will make a change.

Funny how they claim that you used a C.C from company X then provide a statement that has very high interest rate and comes though with Credit Corp's letter head at the top. I know they become the credit provider for the account because they purchased the old account, but can they show you the application form and the T&C that you used to obtain credit from Credit Corp?

I would be asking for the "thing" that you would have had to sign for the transaction to be approved.

As for your friend representing you for your matter, they will not allow that unless your friend is a lawyer, so you are best to learn what to say. Take you time when you talk, think before you speak. I'm not public speaker and not that showie but I have changed the way I am in court to get my words on the record. Its like a job interview, I'm good at my job know what I'm doing but still get nervous before a job interview but when I get asked a question my answer is based on my knowledge and then they know that I know what I'm taking about. If you know the facts for your case you are the best person to speak to it, and if you allege the law/s that they breached and have documentation to prove your claim again you are the best to speak.
One thing I have learnt is that you content of your paperwork has to be pretty spot on, they will test you to see if you know what you are talking about and that you did not just copy and paste of the inter webs etc.

With moving the case to a higher court due to the court jurisdiction to make a ruling to the matter. Make sure you ask the court if it is a Chapter Three court. You are asking as the Claimant has breached numerous Commonwealth legislation with their attempt to collect this alleged debt, due to this you are able to lodge a set-off application . If this court is not a Chapter Three court I move/ motion this court to move this case to a court of competent jurisdiction, namely the Federal Court, pursuant to LOCAL COURT RULES 2009 - REG 2.3
I figure that you are in NSW.
If you look at section 187 of the NCCPA and read item "3" about the lower court and its limit of jurisdiction to subject matter.
So no other court can rule on the NCCPA/ NCC but only the Federal Court.
I know one item of the NCC that Credit Corp has never provided to you is a copy of the contact pursuant to s. 185 of the NCC.
The more that you can obtain that you can evidence the better.
I know the Privacy Act is a Commonwealth breach also, and you maybe able to move your matter just on that but I have not used that Act, only the NCCPA/ NCC.
The breaches that you have is what you can apply to a possible set-off application that will cancel you debt, see
I hope you understand why you need to motion the court to move this matter to Federal Court as the other side should run for the hills!

If you disagree with the Magistrate's at anytime when they have voiced their opinion and or decision , object to it by saying, once they have finished talking, You Honor I object to you opinion/ decision. You will have to state the grounds for your objection.
The Magistrate may disagree that the Claimant has to prove a copy of the contract, you object and your grounds for you objection will be s. 185 of the NCC clearly states otherwise.
The Magistrate may denie you objection, but the main reason why you object is that you are laying the grounds for an appeal to the Magistrates opinion/ decision so if you lose the case due to an error of law or process by the Magistrate you have the right to appeal to a higher court. Once you lodge an appeal they can only deal with the issues raised at the time, you can not bring in any new facts, evidence etc. The way I see it is that when you are in court you are always setting it up for an appeal.

Yes my all means feel free to P.M me and I will have a look over your Paperwork, the more eyes the better! :roll:

Re: Please shed some light to file a "Defence"

PostPosted: Thu May 14, 2015 9:39 am
by setmefree21
In term of s.185 of the NCC, since the credit reform, I cannot find s.185 in the NCCPA. What is very interesting is s.133BA

See how the code made it a little easier for the Credit Provider, I think they don't need to have a Contract anymore, instead they replaced with a "Key Fact Sheet"

I think we can't challenge them on a signed contract, right?

Re: Please shed some light to file a "Defence"

PostPosted: Thu May 14, 2015 10:01 am
by sparkie72
You have to download a PDF copy of the NCCPA from here;
Once you have in on you P.C the NCC is in the second part of the NCCPA.
The NCCPA stops on page 362.
s. 185 is on page 198 of the NCC section.

You mentioned that they have an application form that appears to be of an online type.
How do they know it was you that supplied that information?
The only thing that could prove that you used the card is with anything with your signature on it, can they produce that?
A Key Fact Sheet is more like the T&C's, is your signature attached to that also?
Did get a copy of the Key Fact Sheet?
If they did not give you a copy of the Key Fact Sheet they are in some deep H2O

Re: Please shed some light to file a "Defence"

PostPosted: Thu May 14, 2015 10:08 am
by setmefree21
:D :D got it!

So I am going to fire at them, and request document with my signature, and they MUST provide proofs as they are the one bringing the claim on me.

i) one shall not testify against one's self;
ii) the burden of proof lies with the accuser. wonder it is so hard to read or find via the austill site...thank you :P

My defence will be - Credit Corp accessed my credit file without my consent, therefore, the online application is not a valid proof

Re: Please shed some light to file a "Defence"

PostPosted: Wed Jan 02, 2019 1:00 pm
by Abfab9
setmefree21 wrote::D :D got it!

So I am going to fire at them, and request document with my signature, and they MUST provide proofs as they are the one bringing the claim on me.

i) one shall not testify against one's self;
ii) the burden of proof lies with the accuser. wonder it is so hard to read or find via the austill site...thank you :P

My defence will be - Credit Corp accessed my credit file without my consent, therefore, the online application is not a valid proof

I read your post and was wondering how did you go at the Hearing?