Court Costs

[Penfold92]

Hi,

Without rewriting some of my other threads I am wondering if anyone can shed any light on a small matter for me?

I am taking a Bank to courts over breach of the CCA 1974 and the debt that ensued. MY question is this if it goes to Court and the Judge decides that they are guilty of part or all of it. Will I have to stump up legal costs? What about if the Judge decides they did not breach anything?

It is on a small claims track.

The reason I ask is the Judge in the hearing notice says:

"The Claimants case is not clear: it appears he is asking that money paid towards a debt claimed by the Defendant was paid under a mistake (wholly or partly under an IVA) and ouoght to be refunded. If so it is important that he give dates and amounts for the payments relied on when he files and serves his documents. He should also consider taking legal advice."

It is the last bit about legal advice and why whould I want to do that...That bothers me...

Any thoughts please? I can prove the debt was being chased and entered into my IVA in 2005. The Defendant claims it was paid off in 2005...bless them, but I never got any letter of the sort and they did not complain that it was entered into the IVA in error...They also did not know this because they sent me an upto date statement saying the amount was still outstanding this year!

Thoughts???

Penfold

[gizmo111]

What are you exactly claiming? What did you put in your POC?

[Penfold92]

Originally Posted by gizmo111

What are you exactly claiming? What did you put in your POC?

Hi Gizmo,

Long story, but basically I am claiming a refund of payments made plus interest for this unenforceable debt. I know I will not get a penny in court, I am hoping (if not praying) they will not want the offence to be noted in court and fine and so will settle before the date...

However, can you help with the question regardig court costs. It has not been mentioned to me before even by the defence...

Penfold

[gizmo111]

There is always the possibility that you will be awarded costs in court, I am just wondering why you are taking legal action when you know you have no prospect of success. What offence do you think the defendant has committed?

Edit - just reread your 1st post - is the debt paid or is it still in your IVA?

[Penfold92]

LIke I said Gizmo it is a bit long winded:

http://www.consumeractiongroup.co.uk...olwich-no.html

I just feel that it is not fair to say someone owes you money, but you do not need to supply the details as to how and why it was created. I appreciate that I am asking for this info very late in the day, but if someone owed you money and was paying it back would you not hold onto the proof?

These Banks are a law unto themselves and I do believe I have a sort of case, but I am hoping the fear factor will kick in instead. I have letters proving the debt is technically still in existence and their defence just keeps going on and on about it being settled in 2005. So they are in breach of the CCA and their get out seems to be it was paid off...

Unfortunately for them I have a letter from the DCA to state the debt is still outstanding. Just to clarifyu the debt was NOT sold on and so the DCA acts on the Banks behalf and still does.

Penfold

[Penfold92]

IVA was settled in July this year by me selling my home as full and final settlement. Here's the interesting bit Woolwich did not claim a dividend! Now in previous letters to them I told them not to claim as they had no claim to the money. It appears they may have listened, but it means the debt is still in existance though in a funny round about sort of way...

Penfold

[Penfold92]

Also would I need to supply a copy of the whole CCA 1974 in my Court Bundle or just the sections I want to refer to? Surely the Judge would be knowledgable in this area?

Penfold

[Penfold92]

What about this I have just discovered or am I barking up a wrong tree? I believe this is exactly what I have been trying to argue...However this is from CCA 2006


“I ask the Court to rule the agreement as unenforceable and due to the Defendants actions and lack of documentation find that under the Consumer Credit Act 2006 section 140a subsection 1c this as an unfair relationship. Then based on this the Court has powers under section 140b 1A to issue a full refund of monies paid.”

“Unfair relationships</SPAN>
140A Unfair relationships between creditors and debtors
(1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following—
(a) any of the terms of the agreement or of any related agreement;
(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;
(c) any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).
(2) In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor).
(3) For the purposes of this section the court shall (except to the extent that it is not appropriate to do so) treat anything done (or not done) by, or on behalf of, or in relation to, an associate or a former associate of the creditor as if done (or not done) by, or on behalf of, or in relation to, the creditor.
(4) A determination may be made under this section in relation to a relationship notwithstanding that the relationship may have ended.
(5) An order under section 140B shall not be made in connection with a credit agreement which is an exempt agreement by virtue of section 16(6C).”
20 Powers of court in relation to unfair relationships
After section 140A of the 1974 Act (inserted by section 19 of this Act) insert—
“140B Powers of court in relation to unfair relationships
(1) An order under this section in connection with a credit agreement may do one or more of the following—
(a) require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);
(b) require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement;
(c) reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;
(d) direct the return to a surety of any property provided by him for the purposes of a security;
(e) otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;
(f) alter the terms of the agreement or of any related agreement;
(g) direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.

Penfold

[gizmo111]

The thing is you requested the CCA after you ahd settled the IVA of which the debt was part, and therfore cannot prove that they didn't have the CCA at the time they collected payment.

Are you saying the DCA are still chasing it after the IVA?

[Penfold92]

No Gizmo,

I did it on purpose, I CCA'ed before the settlement knowing if they claimed they would be in the wrong and if they didn't the debt would still exist so I had them one way or the other. Sneaky, but c'est la vie...

My initial request was back in March so a good 4 months before the settlement of the IVA. Does that help?

Penfold

[Penfold92]

The DCA sent me a letter after the CCA to say that they were not dealing with it and that Woolwich had the file back, BUT the letter stated outstanding amount: £XXX so they still had it as outstanding and the exact same figure that was entered into the IVA.

Penfold