Robinson way Court Claimform - old Yorkshire bank credit card

[paulwlton]

Story so far.

 

August 2008 R&W obtain judgment by default on a Yorkshire Bank CC balance.

 

September 2008 Judgment setaside on grounds of penalty charges, diputed default notice and no notice of assignment.

 

October 2008 Defence submitted in relation to unenforceable agreement, penalty charges etc.

 

October 2008 reply to defence from R&W.

 

December 29 2008 date AQs to be submitted.

 

Jan 2009 R&W fail to submit AQ...District Judge gives them extention to the 14th Jan.

 

Paul

[42man]

And have they failed to submit Paul ?

[paulwlton]

And have they failed to submit Paul ?

 

They submitted it on the 15th.

 

File forwarded to the DJ for directions.

 

Paul

[paulwlton]

Update

 

Hearing date in April set for two hours (small Claims).

 

Received a settlement figure offer last week.

 

Telephone mediation today...no settlement as of yet - R&W are to forward what they intend to rely up on in court in the next few days.

 

PW

[cerberusalert]

It looks as if 'Credit Today' will have to create a new catagory for their self congratulary award ceremony..."The DCA who makes the most out of court settlements".

[paulwlton]

It looks as if 'Credit Today' will have to create a new catagory for their self congratulary award ceremony..."The DCA who makes the most out of court settlements".

 

Lol. Lowell Finance are a kneck in front at the mo, they've knocked 60% of their court claim for a full and final settlement in relation to a Barclaycard balance.

[cerberusalert]

Aye, & maybe they'll be 10 lengths in front after the 3rd April.

[creditcardmug]

subbing ,im not far from you, would be interested to get further involved with this, how did they get default judgement, i know you would have defended, given the chance?

Edited February 19, 2009 by creditcardmug

[nish40]

Hi Guys. I had someone from Robinson Way call at my house last night about a british gas account i dont owe.

I cant find a link anywhere to post my own thread, so was wondering if i told the story could anyone help, or could a member of the site team please move this post to a thread of its own for me to add to with my problem. Thanks.

 

 

SORRY FOR GATECRASHING

[cerberusalert]

If you scroll to the bottom of Debt Collection Industry - The Consumer Forums and click 'new thread' it'll open up a new window for you to post your own;)

[nish40]

If you scroll to the bottom of Debt Collection Industry - The Consumer Forums and click 'new thread' it'll open up a new window for you to post your own;)

Thanks

[paulwlton]

Telephone mediation last Thursday, I pressed for them to forward t&cs, the reverse of agreement etc. Recieved another photocopy of the front of an application form yesterday, however they are contact the original creditor (YB) for the t&cs.

 

Paul

Edited February 27, 2009 by paulwlton

[paulwlton]

The Yorkshire bank conditions of use which is refered to in the application as "overleaf" has been forwarded today...no presribed terms are within this document either. They have also forwarded their latest t&cs which obviously do include presribed terms...not good enough!

 

PW

[paulwlton]

My Witness Statement...I've kept it simple.

 

 

 

 

 

The Claimant has failed to comply with the Defendant’s request to provide copy statements detailing all charges levied, Copy of Default notice and Notice of Assignment.

 

The Defendant contends that before the Claimant/Assignee can sue in their/its own name, the requirements of the Law of Property Act 1925 needs to be fulfilled and that the assignment is not effective until the Debtor has received a Notice, therefore the Defendant contends that proceedings cannot be brought prior to the service of a Notice of Assignment and therefore invites the court to dismiss the Claim on the grounds that Assignment has not been pleaded.

 

If the Court finds that the Claimant need not serve a Notice of Assignment prior to these proceedings the Defendant contends that the document the Claimant seeks to enforce is unenforceable by virtue of section 127(3) Consumer Credit Act 1974 for reasons set out below.

 

S61 (1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60 (1)

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61 (1)(a) and s127 (3)

 

The Defendant contends that no prescribed terms are included within the signed document that the Claimant purports to be an executed agreement.

 

Accordingly S127 (3) provides that the court shall not make an enforcement order unless the debtor signed a document containing all the prescribed terms of the agreement.

 

The prescribed terms specified in Sch 6 are as follows:

 

credit limit

Repayments

rate of interest

 

The Defendant seeks to rely up on the relevant authority on the matter and refers the court to Exhibit A.

 

Therefore the Defendant contends that the court is precluded from making an enforcement order and respectfully requests that the court determine rights of the parties’ pursuant to section 142 CCA 1974.

[42man]

Paul....it may be too late for this but if they filed the AQ late then surely.... - http://www.consumeractiongroup.co.uk/forum/legal-issues/151102-help-needed-very-tight-4.html#post1709659

[paulwlton]

Paul....it may be too late for this but if they filed the AQ late then surely.... - http://www.consumeractiongroup.co.uk/forum/legal-issues/151102-help-needed-very-tight-4.html#post1709659

 

The Claimant has breached two deadlines but the Judge has given more time on each occasion and in case i want to get them in court.

 

PW

[paulwlton]

IMO, the only shout they have is to try the s 89 (4) argument but I have Goode's take on s61 If they try this tactic.

 

Paul

[paulwlton]

Just fine tuning my arguments for court later today.

 

 

Document of Assignment Issues

 

1 The claimant alleged that it acquired, by a deed or document of assignment, a proprietary interest in a debt originally owned by the CREDITOR.

 

2 The requirements in the law for the perfection of such an assignment, sufficient to create a cause of action between the claimant and myself, are set out clearly in the law of property act 1925 s136.

 

Legal assignments of things in action

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

3 On 11th August 2008, I sent a letter requesting the inspection of the document or deed of assignment in relation to this claim. the claimant has refused me sight of the document and, consequently, implied that it was unwilling to plead this document.

 

4. In the eventuality that the claimant is unwilling to plead the assignment document, de facto the claimant has no right of action whatsoever in this case, and its case should be struck out as an abuse of process of the court.

 

5. The second requirement of legal assignment is that a notice of assignment should be given to the debtor.

 

6. I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

7 Since the Claimant has failed to give a notice under Section 2 of the civil evidence act 1995 of a proposal to adduce hearsay evidence, no evidence has been provided or falls to be admitted to the court as evidence that such a notice was, indeed, sent to me.

 

8 I respectfully submit that the claimant has no right of action in respect to this debt. I further submit to the honourable court, that unless the claimant can provide evidence that the service of any notice of assignment by post was carried out by registered post, or by personal service, then the perfection of the notice of assignment is not complete.

 

The requirements for service via the post are

 

196.

Regulations respecting notices

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1 by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. [emphasis mine]

 

9. It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served.

[42man]

Looking good PW....!!

[paulwlton]

The hearing was adjourned untill June.

 

Notice/deed of assignment.

 

The Claimant failed to submitt statements from the offset of the agreement, there was no evidence of assignment although the DJ did order a 10 minute recess for the notice of assignment to be faxed through however, the DJ wished to view the deed of assignment to prove legal ownership.

 

Credit card charges.

 

The solicitor argued that credit card charges were the subject of the House of Lords appeal and that the claim for charges should be stayed. The Judge was quickly made aware that this was not the case.

 

The agreement/application

 

It was argued that wilson could not be relied upon because the ruling did not relate to rolling account credit, this seemed to imply that a credit card agreement need not include the prescribed terms. To prove to the contrary i'd printed off schedule 6 column 2 of the 1983 regs, unfotunatley i didn't get the chance to stuff them because the judge concluded without further evidence on the Claimant's part they were unable to prove their case.

 

I now know their main argument...it's not surprising that they failed to submitt a witness/skeloton argument.

 

Paul

 

The Claimant's main argument was that Wilson doesn't apply to rolling account credit agreements. Rolling account credit falls under the scope of section 8 CCA 1974.

 

Paragraph 4 Taken from Wilson....Sir..... I rest my case.

 

4. The agreement was a regulated agreement for the purposes of section 8 of the Consumer Credit Act 1974. A regulated agreement is not properly executed unless the document signed contains all the prescribed terms: section 61(1)(a). One of the prescribed terms is the 'amount of the credit': see the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), regulation 6 and Schedule 6, para 2. The consequence of failure to state all the prescribed terms of the agreement is that the court is precluded, by section 127(3), from enforcing the agreement. In the absence of enforcement by the court the agreement is altogether unenforceable: section 65(1).

[fedupwithdebt2009]

subbing

[paulwlton]

Interesting. R&W have passed the claim on to another solicitor.

 

Yet again nothing has been submitted for tommorow's hearing...methinks they'll use the ambush tactic and try and blag the judge again.

[angry cat]

Interesting. R&W have passed the claim on to another solicitor.

 

Yet again nothing has been submitted for tommorow's hearing...methinks they'll use the ambush tactic and try and blag the judge again.

 

and the solicitors name PW?

 

AC

[paulwlton]

and the solicitors name PW?

 

AC

 

DWF

[angry cat]

OH!

not Horwich Farrelly then?