9Lives v Caboot

[steven4064]

Load of ******!

 

In WS2 they say that you have written to them to ask for information and you would not have done so unless you had been notified of the assignement of the debt. Presumably you wrote because they were demanding payment. The law says you have to be sent a notice of assignment. [rude word]******[/rude word]

 

In WS3 they say they have complied with s78(1) of the CCA 1974. This may very well be true. However, that is entirly different from producing an agreemen that is enforceable in court.

 

I think this Witness statement was written by the office cleaner. It can't possibly have been written by a qulified solicitor

[9Lives]

Thanks for that Steven, I'm still smirking from your comments.

 

Another thing that may make you laugh, whilst waiting for the case to be heard I did chat with there guy from Hodsons, he tried to deduct all the default charges then add them back @ £12 a charge then said his client would be happy to settle with this amount ............. I politely replied no thanks.

 

They havn't even got all my statments so how they know how many charges I've had is beyond me ??

[elizabeth1]

Thanks for that Steven, I'm still smirking from your comments.

 

Another thing that may make you laugh, whilst waiting for the case to be heard I did chat with there guy from Hodsons, he tried to deduct all the default charges then add them back @ £12 a charge then said his client would be happy to settle with this amount ............. I politely replied no thanks.

 

They havn't even got all my statments so how they know how many charges I've had is beyond me ??

 

 

Sounds like Deano at Hodsons needs coffee making daft offers like that - the whole thing is a load of old tosh - £12 certainly was not recommended as the correct charge at all - it makes me wonder where Hodsons heads are these days.

(answers on postcards me thinks!!)

[9Lives]

Just flicking through my court bundle, as I'm in court first thing in the morning, and I just have a couple of questions.

 

Do I need to produce a skeleton argument,

and on the application form, in the box were my signature is are the words:

'this is a credit agreement regulated by the consumer credit act 1974. Sign it only if you want to be ........ ' I can't make out the rest of the words but it looks like the standard blurb.

 

If cabot try and say that these words indicate that this is indeed a credit agreement, what would be my counter arguement ?

[9Lives]

well that was fun !!! 5 hours in court on a day like this .............

 

I guess they can add that to there list of wins, I feel like I got hit by a truck .................. and some ways I wish I had.

 

I'm at a loss to were it all went wrong.

 

I'm at work now will update when I get back home.

[robcag]

Hi 9Lives

 

Just replying to offer my commiserations on your losing.

I was a bit puzzled as to how that could happen so I re-read most of your thread. Bearing in mind that you were only able to offer a limited 'embarassed' defence earlier on, did you ever submit a stronger amended defence?

Cheers

Rob

[9Lives]

I've been a little down over the past 10 days, so apologies for not updating, but I think it's time to pick myself up and get going again !!!!

 

Firstly I felt way out of my depth, the case was in pen court, and I had been used to a small room with a judge behind a desk - I didn't know when to stand and when to sit down !!

So this along with the claiment giving me a document with a judgement between Rankine and a number of banks as I got to court through me a little.

 

We were called in an hour late, and when called in I was asked first to go through the main points of my defence.

 

I went through my witness statement, giving a brief outline of each of the points.

 

I think the best way to go through what happened is to take each point seperatly so point 1)

 

Failure of the claimant to abide by the pre-action protocol:

 

The trial bundle had a number of templae letters with date sent on the top, no actual letters sent but as there witness (under oath) said that they were sent, then the judge was satisfied that within probability I had recieved the letters. Even though I (under oath) had said I had recieved some but not all letters. The judge said that this issue raised would not effectivly provide me with a defence.

I did point out that one of the template letters had a date sent on the 21st, yet I had the actual document with the 22nd on it.

The trial bundle also had a representation of a notice of assignment, I said I had not received it, yet because the claimant had a computer log and there witness said it was sent then with all probability it was sent. I tried argueing that it needed to be sent by registered post but the judge said that did not apply in this instance. Whilst I said that there was no problem with my post, and that I would have remembered receiving this letter the judge found that in all probability I had the notice of assignment.

 

The CCA:

 

The claimant said it did not need to supply the CCA as it was not the creditor I then argued using the definitions, but the judge sided with them. So that section 78 does not apply, hence the reason why they returned the £1 PO.

But if section 78 did apply the application form supplied was an in the correct form. I introduced the case of Wilson v Hurstanger and that the prescribed terms were not there, I also argued that i wasn't a true copy, and that the t&c's were not embodied within the application form as per section 189(4). However as the witness had said under oath that these were the t&c's that within all probablity this was them as they would have been attached at some point. The claimant also brought up the case with Rankin v a number of banks which also backed the claim that an application form is a valid CCA.

 

No default notice sent:

 

The claimant said that this was not needed as per there argument, within the t&c's submitted there is a point that states the arrears are due imediately, and as the credit balance was zero the full amount was due. So the point 13 to 15 in there SA works. I was completly thrown by this as it sounded right.

 

Default charges:

 

The Judge did recognise that charges had been added and that statements were missing so I did not know what the correct balance was. However the claimant had invited the judge to asses the whole of the period missing and I was not deeply keen on helping the court to judge the level of charges - I was asked by the judge what I though the level of charges were in the missing statements my reply was that I was a student, and had no idea what level had been applied it was 5 years ago ??? yet the judge couldn't see why I wouldn't remember.

 

The judge deducted £1k from the total, then added another £4.5k in charges adding another 50% on to the original debt !!!!

 

I have probably left out some important bits, but I think most of it is here give me a shout if you want to see any part of the trial bundle.

 

The court letter turned up last week and I now have until Friday to payup .......... I have no idea what to do next, can anyone give me some pointers.

 

Given that cabot seemed to have answers to everthing I chucke at them it may be an idea to chat outside of this forum, your thoughts are welcome.

 

Thanks for reading this.

[Dibsthefrenchie]

Sorry to hear that it did not go well, i'm bumping this up for you, hopefully someone can give you some advice on what to do next.

[pt2537]

Hi there

 

I think you need to speak to your local CAB and ask them about the BAR probono department referal scheme, they can refer you if you case merits it to the Pro bono dept and the dept will help you with appeal etc.

 

the only real way forward is an appeal and you would need to make an application promptly for an appeal and it would need to be clear points which you would be appealing on

 

im really stuck at the moment, i have a lot happening myself so there is little i can do to help

[elizabeth1]

The Bar Pro Bono Unit is a charity which helps to find pro bono (free) legal assistance from volunteer barristers.

 

We can assist with:

• advice, representation and help at mediation
  
• cases in all legal areas
  
• cases where proceedings have not yet been started
  
• cases in all tribunals and courts in England and Wales
  

Pro bono assistance is only available to those who cannot afford to pay and who cannot obtain public funding (Legal Aid).

 

http://www.barprobono.org.uk/

[steven4064]

I agree with Paul, the only way forward is to pay or to appeal. You don't need to go through CAB, you can approach the pro bono unit directly, even by phone. I used them a few years ago for a friend who wasn't able to get legal aid. They were absolutely birlliant.

 

From a CAG POV, an appeal is appealing (no pun intended) as we desperately need a decent case to knock the Rankine judgement on the head before it gets too widely established as a precedent.

[tomterm8]

In your post 42, the witness statement says a copy of the credit agreement was included. Even if it was not signed, can we see it please?

[tendogs]

subbing

[Vulture_Bank]

9.4 What are the rules of appeal against a judgment of a civil court of England & Wales?

 

Under the CPR, an appellant is generally required to apply for permission to appeal. Permission to appeal may only be given if:

· the court considers that the appeal would have a real prospect of success; or

· there is some other compelling reason for which the appeal should be heard.

An appellant must file his notice for appeal within 21 days of the judgment of the lower court.

The grounds of appeal are limited to arguing that the judgment of the lower court was either:

· wrong; or

· unjust due to a serious procedural or other irregularity in the proceedings before the lower court.

[Vulture_Bank]

On reading this thread

 

cabot have been deemed by this judge to be the owner not the creditor ??

 

Having checked my legal source

Creditor still :grin: has its usual meaning !!!

 

(2 'Creditor' means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and, in relation to a prospective consumer credit agreement, includes the prospective creditor: Consumer Credit Act 1974 s 189(1). See further s 188(1), Sch 2 Pt II examples 1, 2, 3, 4. For the meaning of 'credit' see para 83 post.)

------------------------

 

assuming for the moment cabot are not the creditor

 

however looking at SI 1983/1561

it is headed, ENFORCEMENT,default and termination notices

 

if you read the first page it says under the heading

 

general effect

the ccact 1974 requires notice to be given (and to have expired) before a creditor or owner , may take certain steps .............. see cca 1974 ss 76 and 98 (enforcement where there is no default)

 

comments please on the significance (if any ) of the above regulations applying where enforcement, (without serving a default notice) is sought

 

including sections 76 & 98 of the ccact

[9Lives]

Thanks everyone for the advice, I've been snowed under at work since my last post, however I'm pulling a sickie tomorrow so I can have a chat with the CAB as I think I'm going to try and appeal this - in for penny in for a pound and all that.

 

I had a look at the bar probono website and seems to indicate that I need to give them about 3 weeks notice, but if the court are asking for payment this Friday do I have to let the court no of my intentions and ask for the payment date to be delayed??

 

TT8 - could to see you back again. I've attached the so called cca and the t&c's. When updating about the trial I forgot about the bit were the judge was reading both these forms with a magnifing glass. I did point out that it wasn't a true copy and just a microphish copy, and it was unreadable but it seemed to fall on deaf ears. The claimant seemed to rely on the words in the signature box, and the opening words in the t&c's both mentioning that this is a cca.

 

VB - The judge did say in his suming up that whilst the claimant didn't need to supply a cca, he was satisfied that the cca submitted was enforceable, would this hamper any appeal ?

 

Once again, thanks everyone I'm feeling a little more positive about this case.

[9Lives]

I suppose it would help if I actually attached, what I said I was attaching !!

 

t&c's are now the northern hemisphere version .......

Application form.pdf

t&c's.pdf

Edited August 13, 2008 by 9Lives
turned pdf rightway up

[itsamomentintime]

re cca - there are high court precedents regarding this, a county court judge cannot igonre these rulings - judicial review anyone????

[creditcardmug]

Sorry to hear of the result in this case, the judgment seems mind boggling to me, i hope you can/will appeal for everyone's sake as well as yours

Regards CCM

[creditcardmug]

re cca - there are high court precedents regarding this, a county court judge cannot igonre these rulings - judicial review anyone????

 

Thing is the high court precedents were offered in the defence, and apparently ignored, makes a mockery of the law.

[9Lives]

My feelings exactly CCM !!! and rest assured I will be appealing

[itsamomentintime]

high court precedents cannot be ignored - appeal, 9lives cannot lose.

[FANTASY CHARGES]

can you turn the terms and conditions the right way up on the scan ( we have the australian version at the moment )

[42man]

Just read the thread through from start to finish...amazing, if you can fight it then do....It varies so much from judge to judge...it shouldn't though...!!

[Rhia]

I was in front of a Judge with an "agreement" which was virtually illegible and he ruled it illegible. It has to be legible by such as spectacles NOT a magnifying glass. If it is illegible it is completely uneforceable. If you are going to appeal I would definitely get some srt of barrister help either through the pro bono or direct access scheme.

 

Also you will need to get a copy of the Judgement which you will have to pay for I am afraid. Howver it will be invaluable in forming your appeal docs. The local court will tell you how to get a copy. I got one and it cost £50.

 

Have just looked at your documents. Not only is the application form illegible or not "easily legible" it does not state the basic T&Cs as laid down under the CCA. Whilst an application form CAN be an agreement if it a) has these terms on the signature page or b) it is referred t on the signature page i.e. on the back etc as far as I can see it does not refer you elsewhere at all. This could make it unenforceable.

 

Also I am pretty astonished the Judge was so unhelpful as it is clearly a student appn and asks for your parents details surely he took into account you were a greenhorn kid at the time. You need another Judge to see this and appeal is the only way.

 

I don't think yu have to pay up if you appeal so get your permission application in. But check with court.

 

DOESN'T CAG HAVE A FIGHTING FUND OR CAN WE START ONE FOR 9LIVES?

 

P.S. Just reallised something else this appn is from 1996 so CCA 1974 still applies including s127 3-5 which has been removed in the 2006 amendments to the Act. As the Act isn't retrospective thn s 127 3-5 still applies.

Edited August 13, 2008 by Rhia
add info