Fiddlesticks, I didn't know that.....did you?.loan

[Von Greenbach]

BTW Bill, you have 21 days from the date of your hearing to file the appeal, what I suggest you do is seek legal advice from a consumer lawyer / legal advice centre, don't rely on places like CAB.

[shalaz]

Hi there Bill,

although i am certainly no way an expert or have any experience in these things, through following this thread of yours, i find it worth the fight to appeal, you have nothing to loose. If you lost it stays with the Sh***y descision of the dj to date, but you could win your appeal! This case stinks, how could a DJ turn a blind eye.

I know the descision has put you on a downer, but could that also be what everyone is hoping for, DJ and C's, that youl just drop it and see it as a lost cause! You are right when you say, this kind of goings on could have consequenties for a lot of folks on here, who like yourself are battling it out! If i was you i would go for the appeal and kick some ar**!, especially that DJ, "he has acted wrongly and should be made aware of it!

Whatever you decide i wish you well Bill, greetings from Shalaz

[Bill Shidding]

No, you can do it on this form Bill

 

http://www.hmcourts-service.gov.uk/c.../n161_0706.pdf

 

Hi VG, this is where it may get a bit complicated!

The sum claimed is over the 5k.

The DJ allowed the C to have the case heard in the small claims track (this time), at the C's request. I requested fast track because this is the second time this case has been to court (and I knew that C's DN was fake).

I won the first one (by default), because the C failed to comply with a court order and the claim was struck out. I got my costs, and received a new claim within days.

However, C stated the facts incorrectly on the new POC, so my application to strike out went in. C's application to amend the POC followed after 3 weeks. Different DJ dismissed my app, and allowed C leave to amend. No costs were awarded for that hearing.

 

Incidentally, at the end of my hearing on friday, the C asked for his costs, the DJ answered "yes" so quickly there was no time to blink.

 

The form you linked to is not for small claims, do you know if there is one for the SCT?

 

Bill

 

Thanks for your support Shalaz

Edited March 16, 2009 by Bill Shidding

[Von Greenbach]

Bill, HMCS website is playing up, this could be the form, however, if you phone the court tomorrow, they'll send you the correct appeal form.

 

It will cost you £120.00 when you submit your appeal form, unless you're exempt, then you need to complete form N160a which means no court fees.

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n161_bi_1000.pdf

[Bill Shidding]

Thanks VG,

I'll be considering the best way forward this week. Hopefully with some pointers from caggers. I think to be on the safe side, its best I see a pro. My bro in laws' bro is a barrister, but Im sure he specialises in the family court, but he may be worth a try.

Unfortunately, I am exempt now, thanks to the recession.

 

Bill

[Von Greenbach]

What part of the Country are you located in Bill, Pm me of you prefer.

[Bill Shidding]

How do I pm?

[Von Greenbach]

Click on my user name

 

when it opens up, you'll see my user name staring at you

 

Under neath that click on send PM

 

If you have any problems, post back and I'll pm you, do you know how to open your PMs?

[Bill Shidding]

Sorry, I sussed it.

[popeye1]

Any update bil ,as i have seen something in ,is my a/ment enforceble ,thread

[Bill Shidding]

Hi P1, no nothing. Looks like there is no way out on this one. I've read the CCA 2006 amendment now. It appears, it has been written to be unescapeable.

 

Bill

[popeye1]

What part of cca2006 do you mean

[popeye1]

Have alook at IS MY AGREEMENT ENFORCIBLE.the sticky on the debt collection side,it looks like maisie has a statement for a end of term account,see what you think

[Bill Shidding]

I have the amendment PDF. It is regulation 2(q) amends section 50, that has the real sting.

 

"Regulation 50 allows creditors to include pre-commencement arrears in notices of sums in arrears". Blah Blah.

 

The PDF/notice is on the BERR website and is called "The consumer credit (information requirements & duration of licences and charges)(amendment) regulations 2008.

 

My copy is an impact assessment, but it explains what was changed and why (sort of).

I don't know how to upload a PDF, sorry.

 

Bill

[popeye1]

Sorry bill i do not realy understand pre commencement.will look in tomo

[Bill Shidding]

Pre-commencement = sums (arrears) owed before October 1st 2008.

 

The real crack is that they don't even have to differentiate between pre-commencement and post-commencement arrears. Because the legislators decided it would confuse debtors!

 

Im getting a bit fed up trying to warn other posters who dont have any experience of the court process, or a creditor getting around the "usual process" of DN/TNs or even better, turning up at the hearing and changing the basis of the whole claim. Everybody appears to think that Im a nutter or something, probably because most of what they have read here, they take as gospel. Its only when you go to court NOW, you find that the safety net of a dodgy DN/TN etc has gone. If they claim arrears.

 

Bill

Edited March 31, 2009 by Bill Shidding

[heliosfa]

Hang on bill,

 

I've just read through your thread,and want to clarify -

OC issues dodgy DN

OC terminates off dodgy DN?

 

That is Unlawfull rescision of contract and no matter what that judge says changes that. They are only allowed to claim the arrears on the DN as they terminated within the lifetime of the agreement and as such lost all right to the remainder of the money, so the remainder could never become arrears...

 

I take it the OC demanded payment in full after the TN? as such confirming the account terminated.

 

Also, 87 (1) (d) of the CCA 1974 backs this up

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

By demanding full payment, they were treating your right to the money as terminated. By assuming the dodgy default invalidated the termination, the judge has made a major err.

 

You really should be appealling this one Bill. With case law, the term notice, any written demands for payment and the legislation you seem to have a strong case.

[Bill Shidding]

Hi, Yes I agree. The DJ dismissed all the evidence, because I claimed "foul play" That left the door wide open for the claimant to claim arrears. However, they could have claimed the arrears anyway, without relying on any docs (bar the agreement and a statement of arrears).

[Bill Shidding]

Hi

 

I've just read through your thread,and want to clarify -

OC issues dodgy DN

OC terminates off dodgy DN?

 

Not quite, the OC issued an effective DN.

The OC issued TN without allowing the specified time to remedy the breach.

The OC didn't bother to keep a copy of the original DN, and "invented" one which reinforced their original TN, by allowing enough time to remedy.

I had the original DN.

The DJ dismissed all evidence,

The claimant changed the claim from future payments, to arrears.

The loan term had just ended, therefore ALL sums due were arrears.

 

Bill

Edited March 31, 2009 by Bill Shidding

[heliosfa]

OK, did you submit your DN as evidence?

 

The DJ dismissed all evidence,

Then what evidence did he base his judgement on? did they have statements in evidence showing missed payments?

 

The claimant changed the claim from future payments, to arrears.

Did they change it mid hearing? Was the POC changed? were you permitted to file an accordingly modified defence? answer is no to the last two so more reasons to appeal.

 

The loan term had just ended, therefore ALL sums due were arrears.

No, only the sums before the premature termination were due... this is what several people have been trying to get over to you.

 

Section 87 and case law make it clear that they need a valid DN to terminate, not just to demand early repayment. I would also bet that they demanded full repayment after their dodgy termination, re-affirming their non-compliance with section 87 and the fact that the account was terminated.

 

Improper termination invalidates any claim to any money that would become due after the termination.

 

The fact that the natural end of the loan has now passed is of no consequence. There are no arrears apart from what was on the original DN as a terminated agreement cannot generate new arrears...

 

The claimant either sideblinded you, hoodwinked an incompetent judge or was in cahoots with the judge.

 

If I was a betting man, i'd be wagering my entire student loan for 4 years, plus the £10,00 that abbey owe my OH that you would win on appeal!

 

H

Edited March 31, 2009 by heliosfa

[Bill Shidding]

Hi H, I still agree with you, just as I have agreed with many other caggers who have replied.

 

OK, did you submit your DN as evidence?

Yes

 

Then what evidence did he base his judgement on?

The agreement and a statement of arrears "to follow"

 

Did they change it mid hearing?

Yes, with the permission of the DJ

 

Was the POC changed?

No

 

were you permitted to file an accordingly modified defence?

No, but I was asked if I had one at the hearing.

 

I believe the DJ dismissed the evidence because he knew I was right. He told me to seek legal advice! But why if he had preliminarily awarded what the OC wanted?

 

Bill

[heliosfa]

The agreement and a statement of arrears "to follow"

 

he allowed evidence that hadn't even been shown to the court to be used without being shown? surely that is a for of hearsay.The claimant could make any old number up and were allowed to get it without any other supporting documents.

 

IF there was no statement info, how did they proove the last payment date?

 

 

the fact he allowed the claim to change mid hearing with no time for you to research and prepare a proper defence for the modified claim makes a complete mockery of the legal system...

 

 

you MUST appeal this one, and I would be making a complaint to whoever accepts complaints about judiciary re. that judge.

[Bill Shidding]

Just to clarify, judgment was not entered. ONLY because I said "Am I supposed to get a statement every six months?"

At which point he allowed the claimant to fax one to the court, but they couldn't manage to do it. He had to adjourn. Very reluctantly.

Edited April 1, 2009 by Bill Shidding

[heliosfa]

OK, so there is no judgement yet. is there to be another hearing? IF so, I wonder if you could get all of the info together, along with evidence that they had acted in accodance with a termination, and present it then?

 

I am wondering if it would be worthwile asking for strikeout as they haven't supplied?

[Bill Shidding]

research and prepare a proper defence

 

I have researched extensively. There is no defence for "arrears" now, see CCA 2006 (as amended).