finding faulty cca agreements after a ccj??

[r&b]

sml bump in court tom with this...

[r&b]

has anyone got anth definitive in answer to the line in part 4 of their defence reply :

"where necessary the claimant will rely on reg 3 consumer credit(cancellation notices and copies of documents) 1983."

 

is this purely meant for s78 requests and the like? they have produced a mocked up CA in post 217 using this argument that its gd enough for enforcement. i know s.61 and the case law etc shud be sufficient but as far as i can see thats their only way out so id like to make it watertight for the DJ.

[Spamalot]

Hi R&B,

 

It may be of no help whatsoever...but I have found this

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/110127-consumer-credit-agreements-regulations-2.html#post1981078

 

Might be worth a read.

 

Spam.

[r&b]

thanks spam appreciate your efforts as usual.

[Spamalot]

Just saying Good Luck for today R&B..how many cases have you got going in BTW?

 

May the Force be with you.

 

Spam.

[r&b]

hi spam

had 2 together but all to no avail im afraid ...i lost.

ill try n keep it short, this was for 2 set asides at the same time.

i was up against 2 barristers for over 2 hours. i got the CCA1974 stuff in very early and had a gd first half hour with lots of elma fudd moments from counsel, until that was CPR 14 came into the equation and effectively it was game over from there. it appeared the DJ had no specific power to set aside as i had entered an admission of the claim, thereby in effect, saying i didnt want a defence and the judgment was a right of the claimant. i would need to seek permission to remove my admission and appeal the judgment, i think thats right anyway. CPR 13 was seen not to apply at all as this was not a default judgment.

the rest was back n forth over varying issues of the CAs and DN/TN, etc. in summing up he was very complemetntary of my knowledge of the CCA etc etc and it was admitted that should this have been contested at the initial hearing, both claimants would have found it very diff, if not impossible to justify the claim with what they had produced. therefore i lost on a point of law and was told by the DJ that i was simply too late. oh and my disclosure requests were thrown out also, without much of a hearing in all honesty but i doubt i ll get a rebate....

i asked about leave to appeal and DJ said if i could show a point of law on which he had erred he would give such leave, obviously i couldnt and would simply rely further on statutes, ergo permission to appeal denied.

i think in all honesty that the DJ was not a 'duffer' who couldnt give a toss, he genuinely seemed to be making an effort to be reasonable and fair, which is all u can ask really, but a LIP up against 2 barristers who had a room to themselves for an hour before the hearing is going to be on a dirt track with curtley ambrose haring down bouncers at 100mph lets be honest.

my only complaint would be in further summing up that he deemed me to be on some form of fishing expedition? looking for ways out of the debt was the intimation i think. i have been before him for these 2 set asides and 1 other case so maybe he thinks im trying it on all over the place or smth.

the upshot is he told me i had missed my opportunity at the time of the original claim, could not appeal this decision but could appeal to a higher court.

the documentation they relied on is clearly unenforceable and their admissions were that they had nothing else....so any appeal would need to get past the admission side of things i spose.

so all in all not a great day at the office (or rather out of it)

[Spamalot]

Hi R&B,

 

I am really sorry to hear that things didn't go to plan and I'm sure you've probably had enough of this whole business at the moment and I wouldn't blame you. Unfortunately I'm staring up the same gun barrel myself as I admitted the claim to mine too and so now I know what to expect...

 

It may or may not be of interest to you but I found this list of reasons to set aside on the insolvency website...

 

1. Were you given 28 days notice in order to pay?
   
2. Were you living at the address when the summons and judgement took place?
   
3. If you took out a loan or any form of credit were you in receipt of the Default Notice before receiving the summons.
   
4. Did you receive the summons? They are not sent by recorded mail.
   
5. Maybe you were unable to attend court and defend yourself.
   
6. The judgement should not appear on the credit files if it was paid up within 28 days.
   
7. If you agreed to settle 'out of court' with the plaintiff you should not have received a Judgement.
   
8. If you did not receive any notification of the judgement/s made against you, then you can appeal.
   
9. Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?
   
10. Was the summons taken out against both yourself and another person jointly. If this is so, did you both receive your summons?
    
11. It could have been that you were away from the time between the issue of the summons and entry of the judgement?
    
12. Did you receive the summons on time for you to apply to the court. You have 21 days to reply to the court. If the summons was 21 days late then the judgement would have already been taken out against you?
    
13. Did somebody use your name or address to obtain credit, which resulted in a County Court judgement without you knowing?
    

Lastly...

 

You can use any of the above reasons to have your judgements set aside.

Remember that no correspondence sent by the courts or the plaintiff is ever recorded. In the majority of cases County Court Judgements fail to comply with every detail.

This gives you the chance of having your judgement/s removed forever.

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

Thought maybe the reason highlighted in red could give you another avenue for set aside....and then if allowed...go in for the kill when defending the claim..

 

Just a thought....I think I'm going to make that my line of attack if in all liklihood mine gets thrown out too..

 

Take care, and don't give up.

 

Spam.

[r&b]

hi spam think ive had my shot at setting aside but im keen to look into the removal of the admission and appeal the judgment but that would require a barrister conversant with such measures i would assume.

i hope some good comes from it and you formulate an argument as i know ur in the same boat. maybe ask one of the legal guys to have a look into it, they may know a way round CPR14 should it crop up, unfortunately i knew no recourse when they popped it into the equation (the only one without a big white CPR book... lol)

[questioning]

I really am very sorry to hear this r&b,

 

I'll mail you soon.

Luv Q.x.

[Spamalot]

Hi R&B...

 

I've been hunting around for that myself too in case there was a way of getting that in before my hearing but couldn't find out how to do it..

I thought it might be an application like an n244 or something but I've tried MOJ and HMCS and drawn a blank so far... rest assured I will be using every spare minute to find out and if I come up with something you'll be the first to know.

 

Spam.

 

This link goes to a law website and although you can't log in to the resources it would appear that you can use an n244 to withdraw an admission if you click on the links

 

http://www.practicallaw.com/0-205-4326

Edited July 23, 2009 by Spamalot
adding link

[r&b]

thanks Q.

its a tad disappointing but beaten by the better women on the day...lol

im gonna get some shut eye and re evaluate on a fresh mind.

 

spam, ditto dear chap. i hope urs doesnt spot it but u have to be prepared...

[AndyOrch]

Chin up R&B

 

We will beat them in your other thread ( I did advise you to live eat dream the CPR) it will always serve you well.

 

Get some shut eye now we can regroup tomorrow.

 

Regards

 

andy:(

[questioning]

 

This link goes to a law website and although you can't log in to the resources it would appear that you can use an n244 to withdraw an admission if you click on the links

 

PLC - Admissions: application notice for permission to withdraw admission

 

good find spam, looks like you can get a free trial of the site too.

[Spamalot]

Hi R&B...Me again...Hope you had a decet nights sleep

 

Spotted this too...sorry if I'm overcrowding your thread but it looked helpful..

 

White v Greensand Homes Ltd and another CA TLR 19 July

CPR rule 17.1.2(b) requires that where a party has served a defence, he might amend it only with the permission of the court. In deciding whether or not to grant permission, the court should, where the effect of the amendment would withdraw an admission made in an earlier statement of case, have regard to CPR rule 14.1, which provides that a party may admit the truth of the whole or any part of another party’s case and that the court may allow a party to amend or withdraw an admission. The court should do so in order to give effect to the overriding objective of dealing with the case justly, having regard to the relative prejudice, which would be suffered by each party if the admission was or was not withdrawn. Accordingly, the court was able to apply the overriding objective to allow the defendant to amend his defence and withdraw his admission made by mistake.

 

Spam.

[r&b]

thanks spam

tried to rep u but have to sprd the lurve appntly...u have one in the pipe;)

 

thanks andy

u did indeed warn of the CPR, an extremely powerful tool if u know how to use it...i was dealt a lesson yesterday, plain and simple.

i would now like to find any possible options open to me.

[Spamalot]

White v. Greensand Homes Ltd. and Another – Times Law Reports Current Awareness

 

Case Law Update June 2008

 

Pleadings - Withdrawal of Admission - When To Give Leave

White v Greensand Homes Ltd and another [2007] EWCA Civ 643

CA

Weekly Law Notes Summary

28 June 2007

 

A defendant, who has made a mistaken admission that he had been the designer of a building in pre action protocol correspondence which he repeated in his defence filed in proceedings, could not withdraw the admission without the court’s permission. In considering whether to grant permission the court had to have regard to the question of any prejudice to either party arising from either the grant or refusal of such an application.

 

 

Just more stuff repeating the same theme...

 

I'm just wondering if you can appeal the set aside decision under these circumstances... I.e the judge should have had regard to the question of any prejudice to either party etc. in consideration of you withdrawing your admission.... CPR 17.1

 

It really is a confusing issue..... nowhere can I find if this applies to set asides...

 

Spam.

[robcag]

Hi r&b

 

Sorry to hear of your result

 

I'd started reading your thread a while ago but hadn't got very far with it, and your bad news was brought to my attention this morning by Spamalot as I'm in a similar situation.

 

I hope you can find a way to take this further as it seems from your account that although the Judge was sympathetic with your case from a moral viewpoint, it was the law that won the day for the opposition. Such a shame that you were up against 2 barristers, who also had the opportunity to confer before the case.

 

I heard yesterday from another CAGger that his set aside application is going through unopposed, let's hope for his sake that the opposition don't change their minds.

 

Cheers

Rob

 

PS I thought I had posted this a while ago but I realised I hadn't when I noticed your thread had been updated and this post wasn't there!

[robcag]

Hi r&b and Spamalot

 

I just found this Practice Direction which elaborates on what Spam pointed out regarding CPR 14;

 

PRACTICE DIRECTION – ADMISSIONS - Ministry of Justice

 

Looks like it tells you how to go about submitting an application and the grounds for, etc.

 

Cheers

Rob

[Spamalot]

http://www.justice.gov.uk/civil/procrules_fin/pdf/parts/part14.pdf

 

PART 23 - GENERAL RULES ABOUT APPLICATIONS FOR COURT ORDERS - Ministry of Justice

 

And here's my 2 penneth...

 

It definitely looks as though it needs to be done on an n244 application just wish someone out there could confirm one way or another!!!

 

Spam.

[robcag]

 

It definitely looks as though it needs to be done on an n244 application just wish someone out there could confirm one way or another!!!

 

Spam.

 

It looks like you're correct Spam.

 

I just phoned my local court to explain the further delay in submitting my set aside application and AoE form which I've been served with, and asked the lady about the 'Application to withdraw an admission' topic. She said to submit it on an N244 and advised that I could do it on the same one as my set aside application (which is already getting rather complicated!).

 

Cheers

Rob

[Spamalot]

Ok, R&B... the elves have been working hard...well Robcag and Spam anyway.

 

N244 to withdraw an admission under CPR 17.1 costs £40...

 

Whether you can use this and appeal your set aside decision is still a mystery... but I'm working on it... all is not lost.

 

Spam.

Edited July 24, 2009 by Spamalot

[xx.Morph.xx]

Apologies for the thread hijack but as I'm in court on Tuesday for a set aside with a Bryan Carter 2 part special I'm now a bit concerned that there is still an admission to the 2nd claim in my case.

 

As I don't have time to apply for a withdrawal of admission the only thing I can think of is that my admission was "fruit of the poison tree" if there is such in English Law.

 

Do you think I could get away with :-

I would like to point out CPR part 14 sec 7.2(b) in that the claim by Bryan Carter was unlawful under Section 35 County Court Act & therefore any admission in response to an unlawful claim should be inadmissible?

 

CPR

7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –

(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;

(b) the conduct of the parties, including any conduct which led the party making the admission to do so;

 

Again sorry for the hijack but any thoughts please

Morph

[r&b]

guys i really appreciate your help. im takin it easy for a couple of days n then i ll look into this properly so i wont waste your efforts.

 

morph, if they dont mention part 14 dont alert them to it, mine only came up with it when counsel got involved. but if u can get an answer ready to throw back all the better if it does pop up.

i though if its a 2 part they re dead anyway?

[Spamalot]

Nuff said... enjoy your break.... now log off and bugger off

 

 

Spam.

[xx.Morph.xx]

Thanks r&b , yes it's a 2 parter so I'm praying that the onus will be on the fact that it's unlawful more than any admission.

 

It was your misfortune that started a nagging itch in my brain & I hope you can recover from your setback.

 

Many hands,two heads etc. etc. I hope I can assist at some point in the future but rob & spam seem to be on a mission & seem to me to be providing some good stuff.

 

Morph