Robinson Way CCJ/CO Cap1 card debt - was unable to respond - now want to set aside **LOST** - appealed - **WON** Claim reset - **WON - Case dismissed**

[surfaceagentx20]

Rob,

 

CitizenB asked me to take a look at the result of your application to set aside a default judgment described at post no 107. Simply put, your one and only remedy now is to appeal the DJ's decision.

 

My initial thoughts are as follows:

 

THe DJ was wrong to accept a fax of a letter from a solicitor attaching what was purported to be a notice of assignment. THe DJ should only receive evidence recognisable as such, that is oral testimony, or an affidavit or verified witness statement exhibiting the document and verifying it as true.

 

The DJ was wrong to rule on the fax letter without first establishing the reason for lateness, the failure to submit the same as an exhibit to an affidavit or witness statement and if satisfied with those explanations, then giving you an opportunity to review by adjourning the aplication and awarding the costs of the adjournment to you.

 

The DJ was wrong to decline to set aside a default judgment if the judgment was based upon an allegation in the Particulars of Claim which was false or was based upon a crucial fact or matter but which fact or matter was omitted from the Particulars of Claim. Either the Particulars of Claim pleaded the right to the money by assignment or it didn't.

 

There may be other grounds but I would need time to run through all the thread and read any papers.

 

the essence is this though: On an application to set aside a default judgment it is necessary to show you have a reasonable prospect of successfully defending the claim at trial. That is a prospect which is 'not fanciful.' If you can show that, you ought to be given permission to defend provided your application to set aside was made promptly.

 

x20

[lilly white]

http://www.consumeractiongroup.co.uk/forum/legal-issues/202167-help-n244-form-please.html

 

 

Well this is a disgrace of course thanks to x 20 for taken the time.

 

However I believe that you should bring this to a head.

 

please read above tread

 

he Assignment of the Debt

 

 

19. If the Claimant was not xxxxxx then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

 

 

 

well i have to say the judge should be ashamed

[RobinWayRobinme]

Thanx x20 for your imput

I tried to put it across to the DJ that the faxed letter should not be taken into account. The crazy thing is it was the DJ that gave me the copy not Robin Ways Sols!. I do believe that I can defend this. They have provided no docs apart from this one which I beleive was concocted this morning by claimants(it shows fax no.s and dates etc). The sols for Robin Way confirmed there was no credit agreement, they have provided no other docs. How can they not allow a set aside!

 

Anyway appreciate you looking through my thread further and I look forward to further input.

Robin

 

Thanx Lilly

Your post has helped me to further understand the law. I wish the DJ today understood it also. My main concern at mo is how do I make an appeal and please continue with your help with it. I am still quite angry at what has happened as it is not justice. If I just had to deal with the claimants sols I don't think I would have had a problem, but I had the DJ against me as well:mad:. I may have had a glass or 2 of wine at mo, but I will take what ever action I need to get this put right. Your input certainly helps me pick up my spirits. THANK YOU.

[citizenB]

I dont know how you go about appealing this. But will certainly try and find some help for you.

[RobinWayRobinme]

Thank you CitizenB, any guidance on appealing against this needed now. Having slept on events of yesterday I have tried to identify the areas the DJ made her decision, whether the basis for her decision was correct or not.

 

1. The alleged Notice of Assignment. This seems to be a put up job and I am sure (but how is it proven) it was just typed up the morning of the hearing. Lilly White made an interesting posting which I am exreemly grateful for. From this I would assume that unless NOA was served by registered or recorded delivery which they should be able to prove, not properly assigned and not enforceable. Will try to post a copy of the NOA.

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=12246&stc=1&d=1252149976

 

Any comments on this please.

 

2. I am also posting a copy my letter that DJ said was my admission to the debt.

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=12247&stc=1&d=1252150554

 

Comments please. If I have shot myself in foot with this, please say so.

 

3. I was asked by DJ if I did have a credit card with Capital One. I confirmed that I did but not now but that they had told me some time back that they would not pursue debt. I was asked by DJ what sum was owed to them. I said I was unsure as it was some time since they had contacted me but I pointed out that whilst I was not disputing the fact I had a credit card with them and that there was a balance on the account, a) I did not believe the debt was enforceable, and b) I did not know how much if anything was owed to them. The whole basis of my argument was that I did not believe the Capital One debt was enforceable and that and that even if it was, how could Robinson Way take the action they have taken.

 

4. I was finally asked by DJ whether the credit card ref on the alleged NOA was my account number with Capital One. I confirmed yes. She then asked if I had statements at home from Capital One and if so how much was shown as owing on the statement. I answered yes I did have statements, but they were old as I hadn't had statements from them for over 2 years and that I didn't know precisely the amount stated on them as owing at this time, but it was a darn site lower than what Robinson Way have claimed and therefore even if this was an assigned debt, I had no way of knowing if the amount claimed was correct.

 

She then summarised that she believed debt was owed to Robinson way as it had been assigned to them with NOA and therefore did not believe that I had a chance of defending claim therefore dismissed set aside.

 

OK sorry so long but this is my summary of my day in court. What I need now is a) opinions on the decision made by DJ and whether it is considered that I do stand a reasonable chance of defending the claim and therefore should appeal, and b) proceedures for appealing, time limits etc. If a) is NO then no point in going any further, however if YES then the clock starts ticking on b) and from what I have seen so far, its a complicated process so HELP :?

RWNOA.pdf

MyLetter1.pdf

[car2403]

Personally, I think the Judge has confused themselves. The question being asked here is whether you have a realistic prospect of successfully defending the claim, thereby requiring Judgment be set aside to allow that to happen. The standard required is very low, but I'll have to get further advice on which caselaw applies to the standard of defence required to enable a set aside from the site team. In essence, if you have a defence that is more than just a flimsy defence, the Judgment should have been set aside to allow a new hearing.

 

Secondly, there are issues over assignment. s.136 Law of Property Act 1925 applies here, so have a read of that. If they haven't complied with that section, no legal assignment has taken place. There may be an equitable assignment, but RobWay wouldn't be able to take Legal action in their own names if that was the case. Whether they have or haven't assigned the debt correctly is a matter of fact to be decided by a Judge - as the set aside was on the basis that you had a realistic defence, assignment shouldn't have even came in to it, as that is a matter for trial after disclosure and statements of witnesses have been taken/submitted and served. As that didn't happen, you've been severely disadvantaged here, as you couldn't have submitted argument rebutting their submission that they have successfully assigned the debt.

 

Me thinks you've given the Judge a little too much information - the questions they've asked were only going to lead you in one direction. What should have happened was the Judge should have been referred back to the Civil Procedure Rules, the Consumer Credit Act and the caselaw that has since came from it.

 

The Judge, in essence, has gone beyond their powers, as they have decided that you don't have a realistic defence - but only after they have tried the case. This hearing was not to try the case, it was to establish if you have a realistic defence, meet the requirements of CPR Part 13 and whether the Judgment already entered should be set aside as a result. I think the Judge has made an ultra vires decision, (one that is beyond their powers, in this instance) and it should be challenged.

 

Now, as the application to set aside has been refused, you can't "appeal" it as such as the application has been turned away. What you need to do is apply to the Court to haev the order of the Judge (setting aside your application) set aside or varied, as a result of all this. That's my understanding - happy to be corrected if that isn't the case

 

The next step is to contact the Court and ask them what Order you can expect - you will only have 7 days to apply to have that order set aside/varied, which will be 7 days from the date of the hearing - not the date the order is drawn up - (I've seen them take 2 weeks to write an order up!) so you need to be quick. (Not so quick you need to have a heart attack this weekend, though!)

[lilly white]

just a pointer, but if the debt was under a regulated credit agreement regulated by the CCA 1974 and the agreement was improperly executed and thus unenforceable, it is the correct route to file an application to counterclaim for declaratory relief

 

The case law for this is Southern district finance vs Turner

__________________

stolen from pt

[RobinWayRobinme]

Thank you Car2403

What you say makes sense I think. But to get this perfectly clear in my mind and please correct me if I am wrong.

 

1. I do not appeal as what I need to do is deal with the order of the DJ on 4/9.

 

2. I need to make a general application on N244 (£75 fee) to set aside the order made 4/9 which must be at the County Court by 11/9.

 

3. Before I can do "2" I need to get or find out what is included in the order I now need to set aside as until I know what is in it I don't know what to include in my application.

 

What would be the effect of doing this? Should I be granted a new hearing for the set aside of the DJ's order on my set aside and then if successful the set aside hearing for default judgment would be heard again imediately after?

 

I'd appreciate your comments on my interpretation detailed above before I get down to the nitty gritty of Q10 on the N244. Also, I am still worried if I may have shot myself in the foot with my letter included in my earlier post today. Also Car, would really appreciate any guidance on case law you mentioned re standard of defence reqd for a set aside.

 

I can't give up on this. All your help is unbeleivable. thank you.

 

just read your post Lilly White. Thanx for getting involved with this. Your posts are so helpful. Bearing in mind sols for claimant yesterday confirmed that they couldn't find an agreement, the question of it being improperly executed wouldn't come into it as there isn't an agreement. This being the case should I file an application to counterclaim for declaratory relief be made now. I must admit I know nothing of this type of application (learning on the run) but I will do research. Any further info on this appreciated.

[car2403]

What you've posted paraphrases what I said (sorry, I do waffle now and again, but it's all good, promise!) so sound like you understand me, anyway. I believe this is what you want to do, but you might want to wait for others to confirm.

 

In short, I don't think you appeal the DJ's decision, but challenge the order that the set aside is dismissed on the basis that you do have a realistic prospect of successfully defending.

 

Hopefully you'll get a different Judge that will see this the way it looks, rather than making decisions based on personal prejudice.

[lilly white]

just one question have you sar the orginal creditor,

 

if not why not

[RobinWayRobinme]

So being clear and not wishing to sound stupid, the order dismissing my application to set aside is challenged by me making another application challenging the order of the DJ on 4/9 (N244). The basis of my new application is that I believe that there is a reasonable chance to successfully defend the claim and I challenge the order of the 4/9. Under which CPR can I do this?

 

Yes Lilly White, I did sar original creditor. Done this 01/08 so clock still ticking for 40 days.

[lilly white]

ok well done when we get the sar we should have the CCA and all being well we can go for the following

 

 

. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

application to counterclaim for declaratory relief.

we need the CCA,

Lilly

 

 

[RobinWayRobinme]

Thanx Lilly makes sense. I understand that with this must give them the 40 days but then do I chase them or do I send then letter assuming that as they have not replied that they are unable to produce docs etc

[lilly white]

well if they do not produce the SAR its off to court for them.

 

imho i would contact them by phone to see how its going also sent letter to confirm the conversation.

 

lilly

[RobinWayRobinme]

I'll put that on my list for monday. Thanx Lilly

[citizenB]

Thanx Lilly makes sense. I understand that with this must give them the 40 days but then do I chase them or do I send then letter assuming that as they have not replied that they are unable to produce docs etc

 

 

If they havent complied with your SAR within 40 days +2 (calendar) then you will need to send them a Letter before Action. Either advising that you will make a complaint to the ICO or have a court order them to comply.

[RobinWayRobinme]

Been spending a long time going through court rules and can't find anywhere that allows me to apply to set aside the DJ's decision on my set aside Whilst this would be a less costly and simpler route, everything in the rules points me to CPR 52 Appeals and that I should apply for permission to appeal within 21 days. However, I would need the order made 4/9(plus many other things) to make my application. Much more complicated proceedure but unless I can be shown another way, I see that I have no choice if I am to get some kind of justice from this. Is there any cager out there that has experience of appeals as I do need help with this and bearing in mind the cost of application, I don't want to make any mistakes.

 

Apart from above, Car (or anyone else) if you are able to find any caselaw relating to the standard of defence in set aside applications it would be very helpful and any further input on alternative ways of dealing with DJ's decision on 4/9.

 

Also, Lilly and CitizenB, thanx for your further input on SAR. Am I correct in my logic that this approach could be another edge to the sword, or even another sword, as I could make an application for declaratory relief irrespective of the outcome of the appeal or even if I decided not to appeal.

 

Also, is there any merits in sending a SAR request to Robinson Way? My instincts say yes, but not 100% sure at moment the reason why.

 

The way I see things now is that I have the following options open to me:

 

1. Give up. following options wouldn't apply then.

 

2. Appeal AND/OR

 

3. Follow SAR route. (I see this as a flanking tactic if I also follow appeal, am I correct with this assumption?)

 

Help needed from all quarters now so that I can make proper informed desicions on the way forward with this.

[citizenB]

the only person (s) I know who might be able to assist would be X20 or dad.. you could pm them with a link to your thread and ask if they could help:)

[RobinWayRobinme]

thanx citizenb I'll do that straight away

 

Hi CitizenB. How do I find x20 and dad to pm them

[surfaceagentx20]

Rob,

 

A District Judge has already ruled against you on the question whether you have reasonable prospects of success. He decided you didn't. A decision to refuse your application to set aside the default judgment is a decision which finally determines the claim against you. If you want that decision reviewed you may only do so via the appeal route. You appeal to a senior judge (ie a Circuit Judge of the County Court). You do not successfully overturn a District Judge's decision by application on Form N244 to the same or another District Judge to set aside the decison refusing to set aside. Any application on that basis will be dismissed.

 

The appeal procedure is indeed codified under CPR Part 52. Have a good read of that, especially the Practice Direction PD 52. The application is made by Appellant's Notice in Form N161. You have 21 days from the decision (4 September?) to lodge your Appellant's Notice. I suggest you look through the form and have a good read of the guidance notes at N161A aswell.

 

I imagine since your judgment was by default, the case was never allocated to a track. If by chance it was allocated to the small claims track, let us know.

 

x20

[RobinWayRobinme]

thanx for taking time to look at this for me x20. You have confirmed to me what I thought. I will speak to court tomorrow to check whether it had been allocated to a track. I see that making an appeal is a much more daunting task but I'm pretty determined to give it a go. May need some help along the way though. Thank you.

 

Has anyone else got any opinions on SAR Robinson Way in addition to Capital One.

[RobinWayRobinme]

I've had a day off from this and have now made some decisions on way forward. I am going to appeal against DJ decision not to allow set aside. I have a steep learning curve with this and I am sure that I will have many questions along the way, but with the continued help of all cagers that have helped so far (and any others welcome), I believe I can do this.

 

Not directly related to the appeal, I have 2 questions on the SAR to original creditor. If they do not reply I appreciate I send a letter before action but in that letter do I make the threat of both the Information Commissioners Office or have a court order them to comply. ie a) can I take both actions or should it just be one and b) if one, would the court order produce quicker results.

 

Finally, is there any merits in SAR to Robinson Way. Instincts say yes but would like to hear of any benefits of doing this that may help my case.

 

Thanx all

[r&b]

hi robin,

just seen your result and how very disappointing, very poor.

dont know if this helps but post 263 here from BRW has a few concise pointers for any appeal process u may wish to take.

[RobinWayRobinme]

Hi R&B

Yes makes you wonder whether court system is in fact fair. I wont give up though. Sorry you failed to let me know thread for post 263:)

[r&b]

my apologies:

http://www.consumeractiongroup.co.uk/forum/legal-issues/180864-finding-faulty-cca-agreements-5.html