D/judge Made Wrong Decison What Now??

[pedross]

I am not sure what to do now to be honest with you.

 

It looks like damage limitation is what you need advice on. I think you will have to stop panicking as I would expect advice to come along in time.

 

Stay positive because from what I understand about your situation they are limited to what they can do anyway.

[Mydogsawestie]

With regards to the DN the Judge is quoting CPR 6.26 (as amended October 2008) which treats 1st class post as delivered:

 

The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day;

 

which makes delivery Monday.

Pedross

 

Have to disagree Pedross as Citizen B has posted already even 6.26 makes it 2 business days - DN posted the Friday 9th Jan2009 ....6.2b ‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day so it would still be the Tuesday not the MONDAY so the judge messed up big time & is WRONG as he couldnt be bothered to adhere to the laws of the land.

 

So I can't help but panic, I just need to know from my postings #294 what I can do about it though and understandably with only 5/6 business days myself to do it in.......

[seriously fed up]

Think Pedross is right about not panicking - its not a good frame of mind to think in for one thing!

I dont know how much this matters now - as Pedross may be right about damage limitation - but number 4 of Waksman's summary findings says "If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;" (my emphasis).

As far as I can see, MBNA have provided only the current t&cs (para 23), it would seem that their response was not adequate, as you asserted

As to whether or not you received a copy of any T&Cs at the time of signing, it is a pity there is a term in your application form confirming that you received these. Of course that's no proof at all that you actually did (its a bit like one of these forms that you have to sign when you get a home delivery saying that the goods have been delivered in good condition when in fact you havent even had a chance to open the box), but it is the kind of thing that they are going to swoop on to justify this kind of decision.

[summerbreeze]

I thought the CPR 6 refers to court documents and that the Interpretation Act and subsequent Practice Direction refer to Acts such as the Consumer Credit Act

[bazaar]

OK, So youre quite entitled to challenge the judges interpretation of DN delivery, you can appeal it on those grounds, I'd personally make sure the judge knows what your going to do as well, to poke him / her in the eye anyway.

So in the judgement at point 7 , they have put things in the simplest terms, well that may be fine for an uneducated judge, but there lies the conundrum.

There still remains no executed agreement. Yes , you applied, yes you received, but there is still no agreement that has been received that shows that it was correctly executed under CCA statutes.

Point 11, here is a little opening, it states an 'alleged' breach of contract. OK, where is the contract?? IE, the executed agreement, which would allow them to claim a breach of contract????. An application form IS NOT a contract. Its an application for a contract is it not?

Point 12, OK so the judge accepts that Bulk Centre doesnt require the documentation. But now its at local court it most certainly is because youve requested it under CPR rules, Which is what the other side have breached. Until you see sight of this original document, the rest is all heresay.

[bazaar]

Just found this digging around, its from a Next account, but it may give some more debating room for you. "during a recent High Court hearing, McGuffick vs. Royal Bank of Scotland, it was confirmed that firms may record accurate information, including registering a default in relation to an account where no Executed Agreement has been located. Judge Flaux ruled that claimants seeking to prove their credit agreements are unenforceable under the Act are still liable for monies owed, "Whilst an agreement may be deemed unenforceable... (The lenders

rights) will continue to exist but cannot be enforced." It was decided that demanding

payment, issuing a default notice, threatening legal action and instructing a third party to

demand payment or otherwise seek to procure payment, was not enforcement action and is

therefore acceptable. As this was a High Court the judgment is binding on County

Courts.'

 

OK , I read this as, its OK to try and obtain money from you if theire threats work, but they cant seek enforcement, which would leave your small minded deputy judge in a bit of a pickle. You need to do a bit more research here, but maybe a challenge from this angle would work.

 

Added, also this case is for a fixed term loan, so may have no relevance to your case

Edited January 22, 2010 by bazaar
added info

[pedross]

I thought the CPR 6 refers to court documents and that the Interpretation Act and subsequent Practice Direction refer to Acts such as the Consumer Credit Act

 

I agree summer and thats what we normally work on. However, the judge has used CPR 6.26 to determine the dates. My understanding is that CPR only comes into effect once court proceedings are commenced.

 

The problem is that he has made his decision, the wrong decision by the look of it, so MDaW needs advice on how to deal with it.

 

We need some experienced posters to give guidance on what to do next. I will try and get some along if others can pass the word around.

 

The obvious thing is that permission to appeal should be requested but on what grounds. One could be that the decision regarding the DN has been made using CPR 6.26 when the time for delivery should be calculated using the Interpretation Act which renders the DN invalid. Is that true?

[pabrmu]

Hi MDAW,

Cant really help, but posting to bump it and give you my sympathy and support.

 

If we acted in this way in our jobs, ie. giving duff judgements and taking 6 moths to do so, we would be out of work.

What makes it worse in your case is that the judge seemed so reasonable at the hearing, then went totally against what he told you.

Surely this cant be right.

Best wishes,Pat.

Edited January 23, 2010 by MARTIN3030
inapp wording

[bazaar]

you have to think of the judge as a blank canvass, ( most likely true in most cases :-|). they need educating as simply as possible to ensure they get it, as it were

[Mydogsawestie]

Bazaar/Pedross/Pabrmu thanks for your well put input.. its appreciated too in this turmoil I am in.

 

I am still at a quandry as to what now tho as I have so clearly been disregarded as this DJ has not kept to the relevant FACTS that should have been followed.

 

To appeal & let this DJ know HOW???? Where now...? I need some postings on here now with that information.

 

Or can somebody from the site change my title to D JUDGE MADE WRONG DECISON WHAT NOW?? In order to attract this knowledge going forward since it is a matter of days away.

 

Thanks for your thoughts everyone....

 

Bump Bump Bump

[humbleman]

MDAW

 

PH 23 THE judges understanding of s 78 is clearly wrong since they should supply you with the t&c's at the time of the agreement and not just current.

[Mydogsawestie]

MDAW

 

PH 23 THE judges understanding of s 78 is clearly wrong since they should supply you with the t&c's at the time of the agreement and not just current.

 

Yes the whole judgement is full of flaws!!!

 

I need the N460 is it from scouting about ? Can somebody give me advice on this, also as the judgement is strangely dated Sept 2009 although not received until this week....how does my 21 days in applying for an appeal stand?

[humbleman]

you need to ask the judge leave to apeal, if he refuses then you ask for form N460 that gives the reason for refusal

[Mydogsawestie]

you need to ask the judge leave to apeal, if he refuses then you ask for form N460 that gives the reason for refusal

 

Do I ask on the day, how do I go about this (still going round in circles here) but on just looking now on the courts of appeal website I take it it is here I do it (LONDON?) http://www.hmcourts-service.gov.uk/cms/1273.htm#contact

 

 

BUT as my judgement is dated Sept....(although not received until this week)....how does my 21 days in applying for an appeal stand?

 

Anybody know more about this area ?:?

Edited January 22, 2010 by Mydogsawestie

[humbleman]

If it's the Deputy Judge that has made this decision then you can make an appeal to his superior otherwise it has to be the one in London. To my knowledge. What I find is that you will not get any sympathy with another Judge from the same court since they all sing from the same sheet(not to be confused with same sounding word)

[Mydogsawestie]

Bump

 

Could somebody help me please I am still confused with the paperwork I need to start with....also that this judgement is dated Sept but not rec;d by me until 3days ago.

Should I accept Judgement first this Thursday then try to set it aside, I see so many threads with such alot of info to digest I am at a quandry as to what to actually do to get things rolling.

 

Please help

[seriously fed up]

sorry to see you are still in the toils. I dont have any expertise in English legal procedure (wrong jurisdiction). Might be an idea to click the wee red triangle?

[Mydogsawestie]

sorry to see you are still in the toils. I dont have any expertise in English legal procedure (wrong jurisdiction). Might be an idea to click the wee red triangle?

 

Hi Seriously fed up.....I have done desperately once a day since receiving this outcome since I had only 9 days to deal with it (4days now) guess they are inundated with requests at present so I am beginning to think I should just accept this outcome .

 

So what exactly happens now at this judgement hearing on Thursday? What do I take with me? What should I expect from it?

 

Lets hope todays a brighter day for me in this mess I am in.

[humbleman]

M

 

IMO, if the judge had reached to a conclusion there is very little you can do except go to the court as see what he has to say and then there is the question of costs that he will be directing on.

[seriously fed up]

I dont know the answer to this Humbleman - its why I am posing the question - because I dont have any court experience in England (not my jurisdiction), and I know your situation varies from Westie's because you got the judgement handed down "face to face" as it were" whereas Westie had to wait for the judgement to arrive. But what would your view be on how she should react to the judgement when she sees the judge this week? From what she says she was misled by his comments at the previous hearing - should she make this clear to him? Should she seek leave to appeal the decision there and then? Or - as you are doing - get an idea of costs and then look at putting in an appeal?

Westie, did you click the red triangle and get someone from the site team to look at this one? If not, then do it

[cymruambyth]

If you do ask for leave to appeal, remember to ask for the N460 from the DJ. This does not mean that you will or have to appeal, but if you decide to appeal you will need this form. It gives the DJs reasons for refusing or granting an appeal.

[humbleman]

I

From what she says she was misled by his comments at the previous hearing - should she make this clear to him? Should she seek leave to appeal the decision there and then? Or - as you are doing - get an idea of costs and then look at putting in an appeal?

Westie, did you click the red triangle and get someone from the site team to look at this one? If not, then do it

 

Ask there and then to appeal.

 

There now needs to be a section on the site to deal specifically with Appeals-process.

[Mydogsawestie]

I dont know the answer to this Humbleman - its why I am posing the question - because I dont have any court experience in England (not my jurisdiction), and I know your situation varies from Westie's because you got the judgement handed down "face to face" as it were" whereas Westie had to wait for the judgement to arrive. But what would your view be on how she should react to the judgement when she sees the judge this week? From what she says she was misled by his comments at the previous hearing - should she make this clear to him? Should she seek leave to appeal the decision there and then? Or - as you are doing - get an idea of costs and then look at putting in an appeal?

Westie, did you click the red triangle and get someone from the site team to look at this one? If not, then do it

 

If you do ask for leave to appeal, remember to ask for the N460 from the DJ. This does not mean that you will or have to appeal, but if you decide to appeal you will need this form. It gives the DJs reasons for refusing or granting an appeal.

 

Your questions are spot on Seriously fed up but feel I cannot mither the site team anymore than I have done already. They are the questions I do need to know to go forward.

 

I dont know what will happen this Thurs when I turn up. Should I be taking stuff with me if I do get the same DJ as to why he should let me appeal; and in what format do I present this if anything . Do I accept the hand thats been dealt me then go from there?

 

cymruambyth - leave to appeal, so should I be preparing evidence again ready for the day. Still confused on this not so merry roundabout I have not stepped off yet.

 

I have never started any of these actions only them never accepting my £20mth payplan payments like my other creditors. The judge also was told I had tried to do my best but was only in court as they had made me now wanted them to disclose docs & this dn was not giving me the time to rectify matters.

 

It worries me now as my Income has massively fallen this last year how can they get anymore of something I dont have, I also have costs to bear now in addition & feel disappointed to have been let down so badly by the justice system which has clearly not been upheld.

 

It just doesnt seem fair.

Edited January 24, 2010 by Mydogsawestie

[humbleman]

 

cymruambyth - leave to appeal, so should I be preparing evidence again ready for the day. Still confused on this not so merry roundabout I have not stepped off yet.

 

 

 

you won't be able to prepare any evidence/argument until you have heard th Judgment. IMO there is very little you can do until the judgment is handed down.

[Mydogsawestie]

So one should just shut up & put up....great.... my day is getting even better with this news