What if the Judge asks..................... ....

[Barclaysbunny]

Due to ethics and job safety, I must be very careful with what I write, so please don't ask me for specifics about the case, I can't answer.

At a Court up North today, a Defendant (rep'd by a public charity) had a set aside application heard. He had been served with a stat demand by a solicitor's firm acting for a debt purchaser. The District Judge, of her own volition, agreed to hear a set-aside for the judgment first (today), with the SD set-aside to be heard later this month.

The Defendant had been a bit stupid (he'd not looked on here until a LOT later) and sent in an admission to the claim form - but sent it to the Claimant and not the Court. The Claimant, being a bit desperate, sent in request for judgment before the admission was received - so a default was entered. After nasty threatograms the Defendant very stupidly wrote letters to the Claimant admitting the debt a few times. Then starting paying £10/m. Judgment was entered in March 08.

Due to payments of £10/m on a debt in the region of £4,500 - £6,000, a charge was placed on the Defendant's property by the Claimant. Then more threatograms.

Eventually, the Defendant must have found CAG and started sending in CCA requests - 8 MONTHS AFTER JUDGMENT WAS ENTERED, which were all ignored. A Stat demand was served on the Defendant. The Defendant applied for a set-aside, and the hearing was set.

Now, evidence was an admission form, letters admitting the debt AND payments made towards the debt.

Guess what the good old judge said today?

The JUdge adjourned the hearing for 1 month, with AN ORDER that the Claimant provide the Court & Defendant with a valid CCA compliant agreement for the debt within 14 days. And we all know what that means? The judge has said that the judgment will not be up-held if an enforceable agreement is not produced - THIS IS ONE YEAR AFTER JUDGMENT WAS ENTERED.

The Judge did not say "Did you borrow the money" or "Do you owe it" - because the Defendant provided the Curt with letters acknowledging the debt. The Judge did say though that if a valid agreement is produced s/he will have to find that the Judgment is valid and costs etc will be awarded. Then the set-aside for the SD would be heard.

But, do you think that the debt purchaser (not the original creditor) will be able to provide a CCA compliant agreement in 14 days? They admitted they didn't have one at the hearing and had not sought it because the CCA request was made after judgment was entered. The Claimant solicitor who attended also gave the Court a copy of Rankine. The judge was not at all interested.

So, I thought I'd share. I will, of course, try and persuade someone to seek a copy of the transcript if the Claimant losses to post on here.

Now you know the answer - the judge will not ask, because it isn't at all relevant.

As I said - don't ask specifics, I won't answer - in fact I could probably get sacked and sued just by putting this on - but this could not be a better boost for people who are suffering. Have faith demand a CCA compliant agreement and do not give up.

[Barclaysbunny]

Sorry, I'll clarify in case people lose the point of what I said

The judge did not care AT ALL whether this Defendant received the money, because he had admitted that he had received it and believed that he owed it (he even signed the admission to the claim form) the Judge was only interested in whether it was an enforceable debt and could the Claimant prove that!!!

[diamondgirl]

Does this sound like a Judge who maybe knows a little for a change?DG

[Barclaysbunny]

Surprisingly, there are a number of judges around the Country who still do what they did upon entering law school - looking out for justice and defending those that need it. I know it sometimes seems as though this is not the case.

[diamondgirl]

Well lets hope I get one when my turn comes shortly (still waiting my hearing date.) DG

[pompeyfaith]

Well it is in case law that if an agreement cannot be produced the courts can only look at it as a gift

 

And furthermore if the POC states the cca 1974 then that is the act the court must follow.

 

PF

[Kraken1]

And furthermore if the POC states the cca 1974 then that is the act the court must follow.

 

huh? what other consumer credit act could they follow?

[Alphageek]

CCA 2006?

[pompeyfaith]

the point im making is if the cca 1974 is not mentioned in the poc it makes it easier for the judge to rule on the moral issue where as if the cca is mentioned on the poc you can bring that to the judges attension that the law stands in the case

 

PF

[Kraken1]

oh. right. with you.

 

alphageek - cca06 is not stand alone, it is amending legislation - you still cite the 74 act.

[the main man]

Good thread!

 

What about.......

 

"Do you owe the money"

 

Sir, this will have to be determined from the relevant documentation and the protection offered to me by the Consumer Credit Act 1974.

[squidward]

excellent !! subbing.

[lilly white]

Ok

 

It Really Depends On The Judge And How Things Are Going

 

It May Not Help However

 

Sir /madam Grow Up.

 

Well I Better Be Off To Bed

 

Lilly

[creditcardmug]

For the moral argument, i always think of this

 

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

[sunflower99]

subbing ! excellant thread!

[diddydicky]

firstly i am not sure how the claimant got a charging order on the basis that 10 per month was being paid on a 4500 debts!

 

the only way surely that they would get a charging order was if the ddefendant agreede to it or the defendan t failed to make the 10 monthly payments

 

secondly from this post one could therefore come up with the correct reply to the question did you owe/borrow/spend the money by stating

 

sir, It may well be the case that i did owe/borrow/spend the money or some of the money but with respect the purpose of this hearing is to determine whether , under sect blah blah of the CCA the court has authority to enforce the debt and my submission is that because the agreement is not executed by virtue of blah blah under blah blah under xection blah blah then the court has no authority to enforce the debt and i respectfully request that the court find in my favour

[popeye1]

Sir, may i answer to you as i did to the claiment when he asked me.

**** off

 

Please no one use that ,i am only joking,i told em ********

[Gazza112]

subbing

[lilly white]

Well after a good nights sleep.

 

Did you used the credit card/borrow the money

 

why on earth do think i am seating here behind a forest of paper work which

if you had the time to read and judge or could possible understand.

 

Well it does make you wonderhttp://www.consumeractiongroup.co.uk/forum/images/smilies/wink.gif

[reggie76]

Well after a good nights sleep.

 

Did you used the credit card/borrow the money

 

why on earth do think i am seating here behind a forest of paper work which

if you had the time to read and judge or could possible understand.

 

Well it does make you wonderhttp://www.consumeractiongroup.co.uk/forum/images/smilies/wink.gif

 

Sorry but I don't understand the point you were making?

[GamekeeperToPoacher]

Popeye,

 

Would your response not end in:

 

"CLANG! Mind yer fingers" LOL

[popeye1]

GTP

 

Wouldnt you just like to say it,once would be enough

I suppose if your defence is solid you are saying it.

[Redletter]

I cannot be sure sir as I owe lots to several companies and I've had several companies chasing the same debt on more than one occasion. It's a job to know who I owe the money to, that's why I requested the appropiate paperwork.

 

Excellent response!

[Docman]

Indeed Redletter, 2foot's response is an excellent one to a simple question raised by HAK.

 

The answer is also simple but if not given correctly, can end in disaster. But why is thia simple question asked in the first place might be a more appropriate question.

 

As Barclaysbunny points out, a good district judge will look for justice in applying the law and won't need to ask the question. In these cases, justice will prevail if the law is applied correctly. Problem of course is that the law isn't applied correctly.

 

There are various resons why this happens. I suggest that often it is because judges are ignorant of the law and don't want to admit their failing. They are also overburdened with work and may not be able to cope or of course, like the rest of us, they want an easy life so they can get on the golf course!

 

A defendant who is a Litigant in Person may also be part of the problem by quoting from the Act and case law without understanding what is being said. They may have taken a 'kitchen sink' approach ie they have put everything into the defence including the kitchen sink whether it is appropriate or not.

 

Going back to the original question which was 'Well, Mr defendant, do you owe the money?' The truthful and correct answer to the judge in court is 'Legally, sir [or madam], NO.'

 

Do not say anything else. Do not say 'Yes, but....' or 'Morally, yes...'. You are in the lowest civil court in the land. Keep the answer legal, not moral. If the judge says 'well, morally, you owe the money, don't you?' the answer again is simply 'Legally, sir [or madam], NO.' If the judge carries on with 'Well, you signed for goods and services and now have to pay, tha answer again is 'Legally, sir [or madam], NO.' [if the agreement is not enforceable, you merely accepted a GIFT from the bank or card company - see the case quoted above]. If the judge takes the 'moral' high ground and says you should pay back what you have had, the answer again is 'Legally, sir [or madam], NO.' [see the quote from Lord Hoffman in the Diamond case above].

 

What I am saying is force the judge back to the law. That is all you have and it is in your favour. Just try to understand the law by reading relevant threads and stand your ground.

[Kraken1]

As Barclaysbunny points out, a good district judge will look for justice in applying the law and won't need to ask the question. In these cases, justice will prevail if the law is applied correctly. Problem of course is that the law isn't applied correctly.

 

I don't agree with this. I think the whole issue folk have is that the judges seek to enforce their idea of justice and to be honest, if the roles were reversed we would all agree with them.

 

The view of what is defined as justice for a debtor is coloured in many ways by the conduct of the creditors in their pursuit of the debts. I doubt anyone here denies that if you borrowed the money you should pay it back. It is the conduct of the pursuer when they they seek the payment back that that then alters folks' general intent. The judge does not see the dca conduct and so acts impartially and decides the case on one overwhelming principle - if you borrowed it, you pay it back.

 

If we change places with the creditors we would also agree. We'd like to believe that we'd be a little more understanding about it if pursuing for a debt owed to us, and would ensure that we complied with all relevant statute and guidance. To be honest, when I was involved in a case pursuing an ex housemate for money owed I didn't. They went out of their way to screw us so we used every tool we had to try and recover the cash. It is amazing how emotion will effect the recovery process and proscribe your tactics. Does anyone here not really relish the idea of really taking a bank to the cleaners over charges and throwing everything they can at them?

 

This is just a symptom of the debtor creditor relationship; if you personalise it then you personalise the money and it becomes yours. This is why I don't subscribe to the wind-up-the-dca strategy when it is not necessary (note: sometimes it is). I don't think it is beneficial in the long run.

 

If anyone disagrees with me then firstly I don't believe you, and secondly, can you lend me a grand for a new fridge? I promise I'll pay you back. Promise!

 

Imagine that you leant money to a friend or relative and then they refused to pay it back to you. Would you want the courts to reject your claim on a technicality or award in your favour?

 

I'm not deliberately trying to attract flaming and criticism for this stance, but what I am trying to do is explain the rationale behind the judges thoughts and his decision making process. This needs to be understood to figure out why this type of question might be asked and how to answer it, although TF has nailed the answer above.

 

The judges are following the above thougt processes - what if this was my money? They are empathising with the creditor. It is because of this that it is fatal to a claim to upset the judge, you need them to empathise with you, not with the creditor. It is not about insisting that the judge rule on the principles of natural justice, or lecturing them about statute, but attempting to get them to side with you and to show them that the creditor's conduct is contrary to the principles of natural justice and that this is why they should look in detail at the technicalities - to find a reason to say no to them. This is the presumption you need to start with - you have probably lost the case when you start because of the default position of they judge (or any normal person) and you need to turn this around.

 

These cases are not about the law, but about presentation, people skills, and salesmanship.