D/judge Made Wrong Decison What Now??

[I've got no money]

Yes - send it recorded to the court and the other side

[the_shadow]

Yes - send it recorded to the court and the other side

 

I know its more expensive but I'd consider doing SD to the other side, wouldnt want to give them a chance to say they havent received it.

 

S.

[I've got no money]

I know its more expensive but I'd consider doing SD to the other side, wouldnt want to give them a chance to say they havent received it.

 

S.

 

That is very true

[Mydogsawestie]

Thanks guys....IGNM i need to pm you....

 

 

Thanks for your quick reply on the PM cheers

Edited July 7, 2009 by Mydogsawestie

[Mydogsawestie]

 

Yes - 40-46 (skel) and the stuff in the defence that is highlighted in black bold and underlined comes out (that one line in para 8 and para 17 and 18 in full).

 

 

I'm about to print it off now last thing...we never touched on 47-51 I take it these bits come out too (think you mentioned anything relating to assignment stuff had to anyway didnt you?)

 

By the way the statements they did disclose to me ONLY from 2004 only not 2000 I can see why they now did this as I was a card tart back then so the 2004 onwards were when it began at nil balance again

[Mydogsawestie]

All done & in with court today & other side had it sent

by SD - Thanks IGNM fingers crossed now the DJ on Monday will allow me to use it

[I've got no money]

I thought that you sent it yesterday

 

There is no requirement that says when you should serve a skeleton - I've done cases where we've had the skeleton on the day of the hearing - although it is of course usually best to serve it as far in advance as possible. The idea is to let the Judge read it in advance of the hearing.

 

There won't be a problem with it

[Mydogsawestie]

I have today & tomorrow to prepare for the dreaded "C" word attendance on Monday. Are there any last minute pointers you would suggest that I read up on ready that the other side could bring up against mine?

 

I hope not to be tongue tied but wondering if they do bring up there side of some case law they use as to why my case law should not apply (against there Defective DN both in date format & acct no quoted,not the orig one served to me) also CCA not a true copy etc) I want to be able to give reasons back as much as I can and not crumble with all this legality stuff?:?:

[bazaar]

If DN and CCA are not correct, you need to emphasise it with the case law, so the Judge can be steered your way.

Make sure you dont fall for the moral argument by the other side (or the Judge).

Try to keep them to the legal arguments and precedents set before.

Hey who knows, they may send someone who hasnt a clue, or may not even turn up.

Stay calm ( If you can ) .

If they are waffling, make sure you stop them and make them repeat themselves

[Mydogsawestie]

Cheers bazaar, have been browsing around today to see what stunts they pull so just like to be armed for all eventualities if possible in order to fire back with!

[bazaar]

Well in my experience ( limited as it is ) they will try to pull the wool by leaving out certain words in statutes so it goes in their favour. So if you feel thats the case, then get them to provide the correct statute / case law precedent etc.

You are a LIP after all

[Mydogsawestie]

1.5 hr to go before I set off....one last thing re the lingo me being a LIP what am I asking today besides disclosure of orig CCA,

 

• strike out?
  
• set aside?
  

it all baffles me the terminology.....

[the_shadow]

1.5 hr to go before I set off....one last thing re the lingo me being a LIP what am I asking today besides disclosure of orig CCA,

 

• strike out?
  
• set aside?
  

it all baffles me the terminology.....

 

Hi MDAW, best of luck for today.

 

Its not a set aside as there has been no decision as yet to set aside, I believe you are asking the court to dismiss the Summary Judgement application. Think thats the correct terminology.

 

S.

[Gazza112]

1.5 hr to go before I set off....one last thing re the lingo me being a LIP what am I asking today besides disclosure of orig CCA,

 

• strike out?
  
• set aside?
  

it all baffles me the terminology.....

 

 

Good luck Mydogsawestie on your case.

 

Gaz

[Mydogsawestie]

Just had a letter in the post with statement of costs from them and there skeleton, scare tactics knees are knocking!

[Mydogsawestie]

Quick update had a lovely judge this afternoon and the result (for now) is that he dismissed the Summary Judgement to adjourn until another hearing. Will write up shortly the details later if not tomorrow as have to go on a 3hr journey now ready for work tomorrow. Thank you IGNM too for your input, the judge did consider my amended defence too without an N244 form. Just have to wait for another date now (lets see if they have the orig CCA with them next time & how dare them to say whether the DN was 13 days or 14days I would not have complied anyway!!)

[Gazza112]

Well done on your result Mydogsawestle

 

Gaz

[supasnooper]

Good work MDAW on your successful opposition to the Summary Judgment.

[bazaar]

Well done MDAW, sounds like the other side were clutching at straws with the DN BS they tried in front of the Judge,

If they were that good at ESP then they wouldnt have chased you because you joined CAG.

[zara35]

hi guys

 

i am currently in talks with my solicitor and debating an appeal. If anyone can advise I would really apprecaite this.

My understanding is. If we go for an appeal on the DN and the ruling was overturned and the case dismissed, MBNA would go back into court again after issuing a new valid one as the court has already indicated that the agreement is enforcable.

So my question would be....would I appeal on the grounds of the enforcability ruling i.e They have no evidence that a signed executed copy of the agreement and cancelation notice was ever sent out within 7 days of signing and therfore it is unenforcable under section 127(4). The original judge obviuolsy gave them the benefit of doubt and ruled it was enforcable whos to say an appeal judge wouldnt do the same......

The original document apparantly doesnt hold any weight in a small claims court......so the copy was sufficient to cast doubt.

 

any comments on this would be welcome

thanks for all your comments

[bazaar]

Zara35, have you started your own thread? If so, link it so someone can follow up for you.

You can appeal if the judge / court got things wrong at law. You need to state your case firmer concerning the CCA regs to ensure there is no doubt in the Judges mind.

[zara35]

sorry i thought in had posted on my thread but was reading this one and have posted on the wrong one....here is a link

http://www.consumeractiongroup.co.uk/forum/legal-issues/185557-mbna-restons-defence-ccj.html

[Mydogsawestie]

Quick update had a lovely judge this afternoon and the result (for now) is that he dismissed the Summary Judgement to adjourn until another hearing. Will write up shortly the details later if not tomorrow as have to go on a 3hr journey now ready for work tomorrow. Thank you IGNM too for your input, the judge did consider my amended defence too without an N244 form. Just have to wait for another date now (lets see if they have the orig CCA with them next time & how dare them to say whether the DN was 13 days or 14days I would not have complied anyway!!)

My day in court started with the judge asking the claimants solicitor to go first since they made the application for summary judgement.

Out came his spiel on how many payments I had not made the right amount on so far therefore defaulting on the so called agreement. Against this I explained I was in a debt mngmt plan & had been making payments till May09 based on my Income & expenditure but they have never acted reasonably with me. The judge asked me do I owe the money to which I said I'm not trying to hide from my debtors or say I dont owe the moneyas I've offered payments I can afford I'm asking if theyve complied with the legislation laid down in bringing this case.& have not acted reasonably in trying to come to a payment arrangement with me.

 

Then went onto the default notice posted on a Friday and its compliancy with the 14days notice as he brought up that the new CPR postage rules changes (then CPR 6.7 now CPR rule 6.26) which would conclude my DN was delivered on Monday. My defence in this instance was that the new CPR rules 6.1 state THIS PART APPLIES TO THE SERVICE OF DOCS EXCEPT WHERE:- a) another Part, any other enactment or a practice direction makes different provision. So pointed out therefore THE INTERPRETATION ACT 1978 AND THE QUEENS BENCH PRACTICE DIRECTION 1985 is therefore applicable in my case as I did receive my DN on the Tuesday only allowing 13 days. The solicitor just harped on about asking the judge re some consignia rules but I asked the judge to put them to strict proof of delivery of the said document arriving if they insist it was Monday & perhaps they should have used special delivery if that was the case.

 

I also mentioned that the DN served by them was not as the original served & confuses matters with the different set of acct no's. I also said which the judge seemed impressed this copy DN they had also breached Con Cred Term Notice as it failed to set out the name & postal address of the creditor on it too as per schedule 2 of regulations 2 (2) paragraph 2. The judge asked the solicitor what his response was to this, other than being tongue tied he tried to make out it said MBNA on it to which the judge adv him it didnt as he had the copy in front of him!

 

CCA I asked if he had brought the orig copy as according to CPR rules a claim raised against a written agreement req the orig to be provided at the court hearing. He didnt have it but started rambling on as to why he didnt need it & kept on about the amended agreement act to which I stated that S127 (3) still applies for alledged agreements made before 6/4/07

 

Restons still carried on saying the priority req form as well as my signature contained the claimants (it did not) he tried to make out that the sticker (barcode) over the priority request form is where the signature of theres would be. Without the orig how will we know that though????? I also said it contained no prescribed terms either.

 

They tried Rankine & others v American express & some other case law names such as Sealy v Consignia. I did Woodchester v Swayne & co (DN invalid) & Francis Benion thanking Dr Lawson paragraph. Also mentioned the case of Wilson v First County Trust which set a predecent that the creditor loses all rights under an agreement if they do not comply strictly with the requirements of the Con Cred Act 1974

 

It might sound as though I was confident in putting all this across in court but let me assure you I was a nervous wreck in all of this & shook like a leaf in parts. I am pleased with all the help & advice given by everyone on here thats helped me, with great time & research on these forums I dont know what I would have done without it, thank you.

 

All in all I was pleased the judge dismissed there SJ application however realise I will have another hearing to tackle in due course.

 

I did get served some Summary assessment costs etc from them not that I asked for this in the first place whats my next steps anyone with these or do I just wait for the court now to get in touch???

Edited July 14, 2009 by Mydogsawestie

[I've got no money]

What a cracking result

 

Thanks for a great write up

 

As far as costs go - what order did the Judge make...

[Harrassed09]

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