Phoenix Recoveries (UK) Ltd v Ross-co

[Ross-co]

Dad, BRW that's fantastic, thanks

 

The grounds are limited to those outlinned in my appelants notice.

 

I'll start on the mods tonight after I finish filling my tax return

 

Hopefully I can post the first ammendment later tonight.

 

I just love this forum

 

 

Just a lttle side question. What effect if any would it have if a DJ made an order which allowed only 14 days for payment instead of 28?

Edited January 27, 2009 by Ross-co

[Ross-co]

Anyone have any thoughts on the last part of the above post?

[steven4064]

Payment would have to be made in 14 days

[Ross-co]

Payment would have to be made in 14 days

 

Thanks........

 

I'm having real difficulty finding the following cases

 

Central Trust Plc v Spurway [2005] CCLR 1

Ocwen v Coxall and Coxall [2004] CCLR 7

Ocwen v Hughes [2004] CCLR 4

 

I've checked Lexis and Baili but can't find them. PT gave them to me so hopefully he has them. If anyone has copies can they email them to me.

 

I'll be posting my modified skeleton argument later today.

Edited January 29, 2009 by Ross-co

[citizenB]

have you pm'd pt, perhaps he will be able to give you the links.

[Luminol]

Good Luck Ross

[B3rty]

Ditto

 

Not sure if he wanted his personal stuff showing...I have PM'd a Mod..

[42man]

Ross co...i've unapproved your post as the attachment had your personal details on and reference numbers....

[Ross-co]

 

Cheers, too eager to post it.

 

Here's a modified version.

 

http://www.roscoe1.karoo.net/modified.doc

[B3rty]

Very impressive...did you get help with that?

[Ross-co]

B3rty,thanks for the compliment.

 

No that's all off my own back with the exception of the Bankers Books Evidence Act whch was highlighted by Dad. Let's hope it's enough

Edited January 30, 2009 by Ross-co

[elsinore]

Hi Ross-co.

Under the heading ‘The Issues’ you conclude that ‘If the answer to any question is no then the appeal succeeds’.

But in respect of question d, the answer would have to be yes for the appeal to succeed.

I hope you are able to amend the document accordingly.

Els

[Ross-co]

Els

 

Well spotted.

 

I'll amend accordingly. Thanks

 

Ross-co

[pt2537]

Thanks........

 

I'm having real difficulty finding the following cases

 

Central Trust Plc v Spurway [2005] CCLR 1

Ocwen v Coxall and Coxall [2004] CCLR 7

Ocwen v Hughes [2004] CCLR 4

 

I've checked Lexis and Baili but can't find them. PT gave them to me so hopefully he has them. If anyone has copies can they email them to me.

 

I'll be posting my modified skeleton argument later today.

 

ah, yes

 

these cases are in the Lloyd and Guest Encyclopaedia of Consumer Credit Law

 

the cases are in the Consumer Credit Law reports, unfortunately i dont have them in electronic form they are paper only

 

however you can obtain them from the Law Society at a reasonable price, i wont have access to them til im back in the office.

 

I know the College of law in Guildford has a copy, and i know that most unis that cover law have a copy as it is a major publication

[Ross-co]

Hi PT

 

I've tried Lexis and I have access to both the law library at Hull and Lincoln Uni's.

 

Unfortunately I have to post this by 12 today so will have to drop them out of the argument

[dad]

Ross-co,

 

Sorry I have not been back sooner, but I have been very busy this month. I appreciate it is after the deadline, but I have scribbled a few comments on the draft you sent me and emailed them back.

 

Remember any comments by PM do not benefit from review by other posters and my advice is no better than someone you met down the pub, however there are some points which are better not expressed in public.

 

Dad

[Ross-co]

Cheers. Noted.

[Ross-co]

Ok here we go.

 

So off we all went to the appeal.

 

Turns out the judge had not read all of the appellants notice and had missed the last three parts of it as set out below

 

1. The hearing related to a written agreement regulated by the Consumer Credit Act 1974. Practice Direction 16, 7.3(1) requires that a complete copy of the agreement should be attached to the claim form and produced at the hearing. Neither of these mandatory requirements was complied with and fatally undermines the claim form. This is an appeal under CPR 52.11(3)(b).

 

2. The Judge ordered the enforcement of a regulated consumer credit agreement, subject to the transitional provisions of the Consumer Credit Act 2006 so still subject to section 127(3) of the Consumer Credit Act 1974, which did not contain the the terms prescribed under Section 61(1) of the 1974 Act. In these circumstances the Judge was barred from ordering the enforcement of the agreement. This is an appeal under CPR 52.11(3)(a).

 

3. The Judge ordered the enforcement of a regulated consumer credit agreement where the Respondent had not complied with a request for information under section 77 of the Consumer Credit Act in that the Respondent did not produce the terms and conditions of the agreement as prescribed by section 77 of the Consumer Credit Act 1974. This is a breach of section 77(4) of the Consumer Credit Act 1974. This is an appeal under CPR 52.11(3)(a).

 

4. The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner). This is an appeal under CPR 52.11(3)(a).

 

5. The Judge contrary to Article 6 of the European Convention on Human Rights denied the Appellant the opportunity to present his defence as detailed in his court bundle. This is an appeal under CPR 52.11(3)(b).

 

So in dealing with that he immediately denied my right to appeal point 5

 

Likewise threw point 4 out as being repetitive.

 

Stomped all over point 1 by saying it doesn't matter if the agreement is in court or not as the requirement is not mandatory.

 

Then turned to point 3 and said that he believed it to be common commercial practice for companies to send all parts of the agreement out when requested. Asked me to prove I had not recieved the terms and conditions which I said was asking me to prove a negative. I pointed out that even in the claimants skeleton they had included only a copy of the front page of the agreement and that the terms or conditions were missing. The judge accepted the claimants view that this was merely an oversight......so point 3 went the way of all the others.

 

As for point 2 he wouldn't accept that there were any errors......

 

and so I lost my appeal.

 

Now the more important issue is the application for a charging order..

 

I wrote to the claimant offering to pay the debt off within 4 years if they removed the CCJ. I also agreed that if I didn't pay the debt off within 4 years I would agree to a charging order.

 

I did this on the basis there is little or no equity in the house, that the CCJ stops me remortgaging or raising finance in any event, that my partner and I hold the house as tenants in common, and that I'm now in the process of separating from my long term partner due to the stress of all this.

 

They've said no and have got an interim C/O with the final hearing late in May

 

So guys some thoughts would be good.

[underdog13]

I'm so sorry to hear this Rossco - I can't believe they just disregarded everything again:-(

 

Sorry to hear about the break up of your relationship, too.

 

Best of luck in preventing the charging order - sorry I don't have the legal knowledge to help.

[banker_rhymes_with]

Hello Ross-co!

 

This won't be much help, but I'd Appeal again.

 

I get the impression that once you go down the Appeal route, it may be wise to plan on having to make two Appeals.

 

If you have a strong point of law, and that has not been properly addressed, go for another Appeal.

 

Sadly, the Judge Lottery seems to be just as bad at the Appeal stage as at the County Court level.

 

Cheers,

BRW

[Ross-co]

Obviously this has knocked me back pretty severely. I've been considering bankruptcy as a way forward but I'm a fighter at heart and that would be an easy option.

 

BRW I'm well over the time limit for another appeal but could try to convince the CoA that I have a valid case.

 

Just one thing that might be worth fighting is the fact that one of the prescribed terms is that the interest rate must be stated on the agreement, that's not the APR but the actual interest rate.

 

This is the agreement and I can't see an interest rate on it.

 

http://www.roscoe1.karoo.net/sainscca1.JPG

 

All that was in the original defence which the DJ dismissed without even considering it in open court. Hemust have read it though because he stated that there was nothing in it which would make him change his mind.

Edited April 11, 2009 by Ross-co

[foolishgirl]

You have my heartfelt sympathy Ross-co, can't believe you got TWO pig ignorant DJs! Was this a district judge? If so, sounds almost like a conspiracy in your local CC.

 

Easy to say I know, but you must keep fighting if you can.

Edited April 11, 2009 by foolishgirl
typo

[Ross-co]

Yeah looks like I pick em.

 

The judge in question informed me that he holds certain religious beliefs and doesn't hold with credit.

[Spamalot]

Which religion is it that advocates persecution of victims exactly?

 

Phoenix/Marlin need bringing down....why can't the DJ's see that?

[underdog13]

Yeah looks like I pick em.

 

The judge in question informed me that he holds certain religious beliefs and doesn't hold with credit.

 

Unbelievable!! This judge should be struck off (or whatever it is they do to judges, de-wigged? de-ermined? )

 

He clearly isn't capable of forming an impartial judgement.

 

If he doesn't believe in credit, why is he supporting a creditor?!

 

If we all earned what these blasted judges rake in courtesey of the tax payer, none of us would be in financial difficulties. Maybe he should step outiside the confines of the ivory tower he dwells in now and again to see what the real world is like:-x

 

Sorry for the rant, just so cross on your behalf, Rossco. Please fight on - this is a travesty of justice. Could you possibly transfer to another court? Maybe that would help?