First post, I wish I'd discovered this site earlier !

Was taken to Court by a High Street bank earlier this year, over their refusal to accept reduced payments of a personal loan and credit card.

I originally defended the action (and raised Part 18 questions) solely on the grounds that the sums claimed included unfair charges and that the bank hadn't complied with pre-action protocol,

however at the Allocation Questionnaire stage my bottle went when Shoosmiths quoted £10k in legal costs and I lodged a Form of Acceptance admitting £15k of the total debt (claimed at around £16k), however offering to pay £150 per month.

Shoosmiths promptly accepted my offer of £15k, however demanded that this be paid forthwith.

Sure enough, forthwith judgment was then entered and an application has followed for a charging order.

The interim order has been sent and the final hearing is set for early next year.

I now realise that Shoosmiths had failed on a number of counts to provide any evidence in support of their case, not least their failure to attach copies of the original agreements to the Claim Form.

What I need to know is whether its too late to request copies of the relevant CCA and potentially raise an argument that no enforceable agreement was ever in place.

Would this then render the judgment invalid even though I've already admitted to part of the debt ?

My fear is that if they succeed at the final hearing they will then go on to obtain an Order of Sale with my family ending up evicted.

Any advice would be really welcome.

For the record Shoosmiths have now sent me a copy of the interim charging order with a covering letter saying that this is NOT an application to order the sale of my house, although any future such application will be "considered on its merits".

Just need to know really whether its worth my while contesting this at all or whether its too late to raise any CCA related arguments. Cheers

Yes request proof of CCA agreements as this is what their case is based on; their response can be used at your hearing and if not in order the case will be set aside until resolved. They may even pull out or cancel the hearing if they realise they have not got the correct paperwork.

I am sure others will advise also, who have more exoerience in this area.

I was in a similar position not long back. I made a CCA request which RBS refused to comply, i then made an application for compliance with the application to be heard at the final charge hearing i also submitted a defence to be considered. RBS withdrew their application a week before the hearing.

Paul

I was in a similar position not long back. I made a CCA request which RBS refused to comply, i then made an application for compliance with the application to be heard at the final charge hearing i also submitted a defence to be considered. RBS withdrew their application a week before the hearing.

 

Paul

Cheers Paul that's very interesting....so RBS withdrew their application and the charging order wasn't made, even though they had already obtained an interim order ?

Cheers Paul that's very interesting....so RBS withdrew their application and the charging order wasn't made, even though they had already obtained an interim order ?

That's correct,

That's correct,

Cheers, I may well consider a similar application, although having sifted through various threads on the subject I came across this :

http://www.consumeractiongroup.co.uk/forum/general-debt/57495-1st-credit-mbna-applying-7.html#post752395

Which suggests that the Court may well take a dim view of it.....

I think that you should make a CCA request. At best it could make the debt unenforceable, and at worst it will give you some bargaining power. I don't think one bad judgment should stop you finding out all you can and once you have the information you can decide what you want to do with it. Didn't you ask for a copy of the CCA under your part 18 request?

I think that you should make a CCA request. At best it could make the debt unenforceable, and at worst it will give you some bargaining power. I don't think one bad judgment should stop you finding out all you can and once you have the information you can decide what you want to do with it. Didn't you ask for a copy of the CCA under your part 18 request?

No, unfortunately it was something I was completely unaware of at the time. My Part 18 requests were limited to querying the amount of penalty charges included in the debt.

It seems that Shoosmiths are also attempting to add ongoing interest to the judgment debt which (I think ?) they aren't entitled to on debts covered by the CCA. So the CCA request is perhaps doubly necessary....

No, unfortunately it was something I was completely unaware of at the time. My Part 18 requests were limited to querying the amount of penalty charges included in the debt.

 

It seems that Shoosmiths are also attempting to add ongoing interest to the judgment debt which (I think ?) they aren't entitled to on debts covered by the CCA. So the CCA request is perhaps doubly necessary....

Interest can only be added to the account post judgment if there's a clause in the agreement which allows for this. You will need to obtain the agreement for confirmation.

Regards

Finally calmed down enough to relate my experiences yesterday, and to ask for any guidance please.

Proceedings issued around 12 months ago by RBS for a sum just over £15k comprising of an unsecured loan / overdraft,

I initially defended on the basis of unfair charges but at the AQ stage,

the Defendant was quoting costs of £10k so I decided to simply admit the sum of £15k with an offer to pay in instalments.

The experience was also causing me untold stress and I couldn't face a drawn out legal battle.

Claimant then promptly obtained a forthwith judgment in September and an interim charging order was made around mid October.

I discovered (too late !) via this site that the original agreements may not be enforceable and I duly sent off a CCA request in November,

only to be told that they didn't need to produce the original agreements as they were seeking to enforce the judgment rather than the agreement. Having issued out of Northampton Bulk Court they didn't need to annex the originals to the Claim Form either.

The final charging order hearing was listed for yesterday which I attended personally and I had presented a number of submissions prior to this, including :

1. The judgment wasn't enforceable as they hadn't complied with my CCA request;

2. Charging Order was inappropriate due to my wife having joint ownership of the house,

threat of Order of sale causing disruption to my three children,

prejudice to other creditors,

unsecured nature of the debt and

the fact that I was paying £125 per month off the debt already.

A lot of these objections were gleaned from the National Debt Helpline website and also from reading threads on here.

3. If order granted I was looking for any order for sale to be delayed until children reached age 18.

4. Claimant was also seeking to claim statutory interest at 8% on CCA regulated agreements.

Finally went before the judge

who confirmed having received the submissions.

Point 1 was dismissed as I hadn't made an application to set the judgment aside and that I would have to obtain leave to do so out of time;

Judge briefly raised issue of prejudice with Claimant solicitor,

who produced (as if by magic) some case law which the judge then accepted as gospel and this point was also dismissed.

The remaining issues raised within my submissions were completely ignored and the judge simply granted the Order without any invitation for me to present my case.

We were then dismissed and I felt I had to try and get some of my points across

- I attempted to obtain assurance re Order for sale,

judge said that this was entirely at the discretion of the Claimant.

I also raised the issue of interest

- I had brought up the 1991 Act and even supporting case law

(Dept of Fair Trading v First National Bank)

which the judge said he hadn't heard of and said that Claimant was entitled to interest at 8%.

By this time I was starting to lose my rag (not good) and was insisting that they were CCA regulated and thus exempt

- judge just didn't want to know and said I would have to take this up with the Claimant and if necessary, make another application.

I came away from the proceedings utterly dejected and with a massive sense of injustice.

The guy acting for the Claimant had 3 other Charging Order cases which he'd concluded within about 20 minutes and the judge was obviously handing out Orders like toffee.

It seems to me that any attempt to argue against these is entirely useless, the banks obviously have the judiciary in their pocket and take no account whatsoever of the Defendant's case - if you default, they get a charging order. That's it.

My own cases wasn't helped by the fact that I had a judge who seemed to be either oblivious to aspects of the law, or who had no intention of enforcing it.

As for what to do next,

I suppose I have nothing to lose but to try and get the original judgment set aside but has anyone been successful with this four months down the line ?

There's a sizeable chunk of the debt which comprises unfair charges and PPI

- I was only aware that the latter could be disputed after the original judgment was entered.

Also would the bank's failure to produce original agreements be sufficient to argue that I've a reasonable prospect of defending the case ?

I also need to do something about the interest aspect

- if I don't then there's no prospect of me ever being able to pay off the debt.

Would this have to be a separate application or could I include it with the set aside application ?

Any advice would be greatly welcomed.

Apologies for coming across negative but the whole experience has left me completely deflated.

Cheers YM

Hi YM

I had exactly the same problem at my charging order in June. The judge was completely ignorant of consumer law.

I will be applying for a set a side, but thought it best to clarify a few issues raised by this judge. When I spoke to the courts 2 weeks ago, they informed me that she had been removed from her position.

You can apply to the courts for a copy of the transcript.

Also my problem is with the RBS, they also refused to comply with my CCA request as they already have judgement. As I am indending to take this back to court I am going to use CPR part 31.16, A Formal request for information.

We also admitted the debt on the CCJ, like you,we didn't agree with the amount but were bullied into it.

Have you done a SAR ?

Debs

Hi Debs, thanks for the reply

Haven't done a Subject Access Request as yet, not sure what this entails or what its purpose is......?

I noticed that there was a microphone at the hearing, would the transcript be a direct record of what was actually said ?

I had the impression that the judge was a "stand in" of sorts because the top-level judges didn't particularly want to preside on the 2nd Jan, being the Friday after New Year and all that.......

argh the judge is sooooo horribly wrong

i cant due to time restrictions answer all the points here

but on the matter of the first point

Point 1 was dismissed as I hadn't made an application to set the judgment aside and that I would have to obtain leave to do so out of time;

RUBBISH, been in court before with this argument.

There is case law which sets out the correct procedure is to submit a counter claim for a declaration pursuant to s142(1) CCA 1974

the case in question is this one Southern & District Finance plc v Turner - [2003] All ER (D) 112 (Nov)

Hi,

You really need to do the SAR asap. They should send you all the statements from day 1 [accounts opened], on both your loan account & your current account. This way you can calculate exactly all the charges & interest prior to judgement.

It should also show to what account your payments are being credited.

It will also show if they are adding interest after judgement. They cannot do this unless your agreements allows for Post-Judgement interest.

1. Send your DSAR to Joyce E Tudor, Edinburgh & £10 payment.

2. Send a copy of this to The Customer Services Manager, CMS, Telford. Ask them specifically for a copy of your "Diary Event History". This is a log of all phonecalls/letters between the bank, you & the Solicitor.

3. If data held on you is incorrect, challenge them. If data sent to Sol's is incorrect, DSAR the solicitor.

When we did our DSAR back in April, it was to calculate the interest & charges, our aim initially was to use this to negotiate a settlement with the RBS. What we actually discovered has been ....well.... just down right criminal.

Don't trust the RBS. They WILL lie to you. From now on you need to be 1 step ahead of them.

IF they refuse to supply a true signed copy of your agreement, showing that they can add interest Post Judgement.Challenge there right to do this. MAKE them send documents supporting there claim. If they refuse...use CPR 31.16.

I noticed that there was a microphone at the hearing, would the transcript be a direct record of what was actually said ?

Speak to the courts on monday, yes it should be a full transcript. Don't be frightened to say you were concerned with the Judge's comments. Even ask about what steps to take if they have been mislead by the banks Sol's.

Debs

Cheers pt 2357, if there's anything else you can add when you have the time it would be much appreciated.

Also thanks Debs, will look to get a SAR off as soon as poss.

YM

I SAR'd Spreadex who I have a debt with after their crafty antics and finally got a CCJ by default.

I'd offered them monthly payments but they ignored this.

They wrote back to me saying I wasn't entitled to the information unless I could prove it was relevant to court proceedings and as they were now going for a Charging Order to enforce the debt it was too late.

I hope you fare better!

Am subbing to this thread as I might try for a set aside of CCJ as I too was stressed to the gills and went for Admission thinking it was the easy option. Good luck YM.

Good luck YM & debbs.

I think the only way to go is to get the CCJ set aside- it can be done.

There was a thread on here a few days ago who got their CCJ set aside after 2 years!!

We are thinking of going for it and our CCJ and CO was in June last year but we have just got info from SAR

- some very interesting things too!!

42man or PT have lots of experience in set asides- go for it and good luck:)

have a read of this case

Its the one i refered to above, it sets out the procedure that should be used where there is a judgment in place and you wish to contest it

They wrote back to me saying I wasn't entitled to the information unless I could prove it was relevant to court proceedings

This is wrong. I hope you still have these letters.

In the first instance lodge a formal complaint with them as being in breach of Section 7 of the Data Protection Act 1998. If they fail to rectify the situation then lodge a complaint with the Information Commissioner's Office (because of their workload they take a while to respond but stick with it).

Thanks for that palomino. I will write to them stating that and am also sending copies of everything to the court to go on file. ts now been moved to my local court and it feels like the axe is starting to fall! Am going out now but will have a look for the Data Protection Act 1998 and have a read.

When I origonally looked at reasons for set a side, it stated quite clearly, that if you discovered that the CCJ was made up of interest & charges that you now believe are "unlawful", you could apply to have the judgement set a side.

I still don't understand why TIME should be an issue. Whether it was last month or [in our case] 10 years. If the CCJ is INCORRECT, then you should have the right to challenge it.

New legislation [the data protection act was not around for us] & the internet are making it possible to challenge the banks, just like the advancement of DNA is helping the police.I recently saw a case, a crime had been committed 30 years ago. At the hearing, the Judge didn't say to the police "You should have caught him sooner, I'm rejecting your evidence".

The problem seems to be, that we "The litigant in person", are becoming more Knowledgable. The banks don't like it, & neither do the courts, they've got too used to just rubber stamping every CCJ.

Debs

I presume its to do with the CPR rules stating that any application to set aside has to be made promptly, although like you Debbsy, I don't see how this is relevant unless there's any particular prejudice to the Claimant.

But then again if a bank comes to us with a claim for monies going back 10 years we can invoke the Limitation Act so I guess it works both ways...

Thanks again for everyone's advice, will crack on with the application to set aside and will let you know how I get on.

YM

Just reading the case law of Southern & District FInance v Turner as supplied by pt3537 and paragraph 33 in particular - seems to me that anyone looking to challenge the enforceability of CCA agreements should cease any interim payments as these may ultimately not be recoverable, should a conditional order follow.......anyone agree ?

YM

palomino, is there any chance you could have a look at my thread http://www.consumeractiongroup.co.uk/forum/legal-issues/165310-spreadbet-debt-various-credit.html?highlight=Spreadex re agreements later please? Sorry to go off topic but think you and x20 added some helpful comments when I first started thread up. With thanks, MissC

Hiya, I posted a thread around a week ago following a charging order final hearing which went pretty badly for me. I'd made a CCA request to RBS with regard to the debt, which comprised a personal loan and overdraft.

The personal loan response was effectively that they weren't required to provide a copy of the agreement as judgment had been entered. I'm in the process of applying to have this set aside on the basis of unfair charges / PPI / interest post-judgment.

I've now had a response with regard to the overdraft aspect and would welcome any advice as to whether the T & C's (which may or may not be available) would in turn be legally enforceable. In the absence of any signed arrangement with regard to the specific overdraft, is there any form of agreement in place ?

Many thanks

YM

RBS p.1.pdf

RBS p.2.pdf