Jump to content



  • Tweets

  • Posts

    • I don't think that you have told us when you bought the car. However, you have referred to a conversation in which they apparently told you that the MOT had been carried out on 11 November so that suggests to me that you bought it after that date. Although it seems as if you are dealing with quite a dodgy crowd, you may as well go through the paces of asserting your proper rights. Because you have discovered this issue within the first 30 days – you can add to the strength of your position by sending them a letter asserting a right to reject the vehicle under the consumer rights act. If a car manifests a defect within the first 30 days then you are entitled to reject it out of hand with no chance of repair but you must assert your right in writing. Send them a letter immediately – recorded delivery – informing them that you are rejecting the vehicle and telling them on what grounds and say that you are asserting your rights under the consumer rights act. It won't make a whole lot of difference, but later on if you find yourself having to take court action, then it will all help. Please let us know when you have had the AA check. Meanwhile, I suggest that you contact me at our admin email address and let me know the identity of the garage and any other identity clues that you have unearthed. It may enable us to give you additional help
    • Assuming you're correct about the limitation running from the last date of deferral. The last deferral was in 2013 so the statute barring period would end on 31 August 2019, the money claim was made on 3rd June 2019 so is within the limitation period. Therefore the debt is not statute barred.
    • I agree with my site team colleague @slick132 but with variations. These people have been needing you around and cause you serious harm in terms of the amount of effort that you have been put to as well as the damage to your credit file. You have taken all sorts of different stories and also been misled by them as to their statutory obligations in respect of data disclosures. It has taken the issue of court claim to get them to make any move. You have taken control of the situation and it is you who has the whip hand at the moment. They are now proposing to telephone you to discuss the matter in some way – but you have no idea. Also, you have no idea who you are going to be speaking to and whether they have authority to commit Virgin to anything at all. If you agree to this phone call then you are at risk of handing control back to them because they will partly ask you to withdraw the action and they will also offer to make a payment as a "gesture of goodwill". Now that you have attracted their attention and they realise that something needs to be taken seriously, I don't think you should let go of the initiative. Please can you post up the email which you received from them. He was it from and what is that person's role within the company. I think you should write to them and refuse the call and tell them that you are happy to discuss matters that you will want to know what it is they think they have to discuss and who will it be who will be phoning you – and will that person has any authority to make decisions. I think should also emphasise to virgin that they are already in breach of their statutory duty. That if they decide to file a defence that they will have to sign it is a statement of truth subject to a sanction for contempt of court and that as they are clearly in breach of their statutory obligations, it would not be possible for them to sign off such a statement of truth and if they do, then you will bring the whole thing to the attention of the court and invite the court to express their own opinion on the matter. I think it's very important that they tell you in advance what they propose to discuss. I think you should tell them that if they're not prepared to disclose the purpose of their phone call and the points that they intend to cover and if the phone call is not made by somebody at a suitably elevated managerial level, then you are not prepared to discuss the matter. I'm afraid that I'm struck by the naïveté of your statement which I suppose is intended to be assertive.   Haven't we reached a point yet where you understand that you can't trust these people and although you may discuss various things on the telephone, if they then are required to minute the conversation and provide you with the resume of the conversation, you are handing them carte blanche to present the conversation in a way that suits them together with nuances included or removed, and generally slanted in their favour. They might not – but you are certainly opening up the possibilities and if that's what they do, how are you going to counter them and say that they have not correctly recorded what you discussed and agreed? You seem to be doing everything you can to keep on handing the baton back to Virgin. I have no idea why. You should not get involved in any telephone conversation unless you have first read our customer services guide and you are recording the call for your own benefit. If you cannot do this or you are not prepared to do this then don't take the call at all. Please will you post up the email that you have received, let me have your comments on what I've posted here and if you agree we will draft a response. You might like to start. Apparently they are proposing to telephone today and so we need to get a move on. If they happen to telephone before you have received a written reply to your message, then you should simply tell the caller that you are still waiting for their response to the email which you sent a little while earlier and you're not prepared to discuss anything until you have their written reply to that.
    • Well done on getting your refund and thanks for the update. I understand that you are still out of pocket. If you would like to get that money back and we will help you and I think it will be fairly straightforward. The amount of money outstanding is scarcely worth his while causing any trouble. It would be very helpful if you could post up a link to the new advertisement and also do you have any pics of the car and also its registration number please. I think we owe this to possible new owners in case they come to this forum.
  • Our picks

Trying to set aside judgement - Round 2: Case dismissed


Please note that this topic has not had any new posts for the last 3475 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

Hi all

 

Not been able to get online as changed broadband and massive probs with it (another story). Anyhow, thought I must do something re Interim Charging Order (hearing same date as set aside) just in case something goes wrong, although I am confident with set aside.

 

Can I have some opinions on second witness statement, shown below, just addressing charging order issue.

 

 

 

2nd Witness Statement of RobinWay

 

 

Claim Number: XXXXXXXX

 

 

Exhibits:

 

 

Date: 25 August 2009

 

 

 

 

 

IN THE XXXXXXXXX COUNTY COURT Claim No. XXXXXXXX

 

 

BETWEEN:

 

 

 

 

ROBINSON WAY & COMPANY LIMITED

 

 

Claimant

 

 

 

 

AND

 

 

 

 

 

ROBINWAY

 

 

Defendant

 

 

 

 

WITNESS STATEMENT OF MR ROBINWAY SETTING OUT OBJECTIONS TO CHARGING ORDER

 

 

 

 

 

1. I Mr RobinWAy of XXXXXXXXXXXXXXXXXXX am the defendant in this case and a litigant in person and I make this statement to set out my objections to the Interim Charging Order obtained XX June 2009.

 

2. I make this Witness statement from information and facts within my own knowledge, except where I have indicated otherwise, and which I believe to be true. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3. I would refer to my first Witness Statement in support of my application to set aside judgment and I will refer to such evidence referred to in that.

 

4. Whilst I believe that in the interests of justice the Judgment should be set aside, this Witness Statement has been made to specifically deal with the Claimants application for a Charging Order should it prove necessary to deal with this at the hearing on 4 September 2009.

 

5. I would aver that the Claimant knowing that the Judgment in default entered on 15 May 2009 was defective and therefore an irregular judgment and the Claimant having failed to take any steps to neither correct the defective judgment nor assist me in doing the same and knowing that I had made an application to set aside the defective judgment, the Claimant applied for a Charging Order.

 

6. I would claim that the Claimant completed form N379 Application for charging order on land or property, and signed the Statement of Truth knowing that that the facts contained in it were untrue thereby bringing the Claimant in contempt of court according to CPR 32.14. The particular untruth was the deliberate omission of other creditors known to the Claimant of which I would refer to the exhibit marked “AL1-5”.

 

7. I would also like to bring to the courts attention that in the Claimant’s Application N379, the Claimant referred to a judgment given on 13 May 2009 and therefore the Interim Charging Order refers to a judgment given on this date. The date that the Claimant obtained judgment was not 13 May 2009, it was 15 May 2009 and I would therefore suggest that the interim charging order obtained on the 29 June 2009 is defective.

 

8. I believe that if the Interim Charging order was to continue it would be (a) unfair to my unsecured creditor MBNA as the Charging Order would prejudice them by giving the Claimant priority, and (b) will jeopardise arrangements I have made with them. The Claimant was aware of this creditor before completion of form N379 and I would refer to the exhibit marked “AL1-5” as proof of this.

 

9. I believe that as the Judgment given on 15 May 2009 is an irregular judgment and as such I could not have been in breach of the order. As I have not been in breach of any order, the Claimant should not be allowed enforcement by way of a Charging Order or otherwise.

 

10. I would aver that during my limited dealings with the Claimant they have acted dishonestly and have engaged in a business practice that is deceitful, oppressive, unfair and improper (whether unlawful or not) nor have they acted with professional diligence.

 

11. Not withstanding the above, it would not be worth a charging order being made to secure payment of the alleged debt as I do not have sufficient available equity in my share of my home. When my home was purchased on XX XXX 2003, my wife and I purchased it as Tenants in Common with my share of our home being 1%. The Proprietorship Register for my home as detailed in the Interim Charging Order has the appropriate entry severing joint tenancy and I would refer to the exhibit marked “AL2-16” which is a copy of the declaration of trust dated XX XXX 2003 as evidence of my 1% share in my home.

 

12. My wife and I purchased our home on the XX XXX 2003 for £325,000.00 with an interest only mortgage from Mortgage Express. I would refer to the exhibit marked “AL2-17” which is a copy of the last annual statement from XXXXXX XXXXX dated 31 March 2009 showing a closing balance of £276,671.29. I have made every effort to determine the current value of my home but as the property market is so bad and I live in a small village I have been unsuccessful in getting meaningful comparable values. However, in assuming an annual growth of 5% per annum would value my home at about £425,000.00 giving an approximate net equity after selling costs of 3% of £135,579.00 of which £1,355.79 is my share.

 

13. I would respectfully ask the court to agree with me that the Claimant has had one overall objective in these proceedings and that being to obtain a Charging Order with little or no regard to fairness, the Consumer Credit Act 1974, CPR’s and Pre-action Protocols as set out in Practice Directions - Pre-Action Conduct. Their conduct in these proceedings’ has severely prejudiced my position and such practices relating to Charging Orders have been investigated by the Office of Fair Trading who produced a review in June 2009 which states:-

 

The OFT's Review of the use of Charging Orders by its Licensees

As noted above, due to the reported rise in numbers of charging orders being granted the OFT has conducted a wide-ranging review of the use of charging orders as a method of enforcing judgment debts, where the debts originally arose under regulated consumer credit agreements.

 

The interim results of this review indicate that there may be potential problems with the way in which some creditors use charging orders as part of their debt enforcement activities.

 

The OFT will be working with licensees to ensure that consumers are not the subject of what we would consider unfair business practices in relation to the use of charging orders and orders for sale.

The OFT expects its licensees to accord with all relevant legislation and guidance when conducting debt enforcement proceedings. The OFT will take appropriate action where it finds business practices that fall below the standard expected of licensees.

 

14. Under the circumstances, I would respectfully ask the court to discharge the Charging order.

 

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

 

 

Signed ………………………………………………………..

Mr RobinWay

 

Dated …………………………………………………………

Comments gratefully appreciated as I need to get this to Claimant by Friday (7 days before hearing) would have posted sooner if I could have got online.

Link to post
Share on other sites
  • Replies 551
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

Posted Images

  • 2 weeks later...

Hi all

Well my day in court is this afternoon:cool: Bit nervous but believe that I'm well prepared thanx to the help here. Will post outcome of set aside later.

 

Once again many thanx for the considerable help from R&B and CitizenB. I couldn't have done this without you.

Link to post
Share on other sites
Link to post
Share on other sites

Hi Robin, crikey that came round quick. Good luck for today. Please let us know how you get on. I think you have prepared well so should be ok.:)

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

Link to post
Share on other sites

Didn't go well at all:cry: Advice needed now as to what to do next. After I made my presentation salient points of what followed shown below:

 

1. Handed a copy letter by DJ that she had just recd today (I hadn't been sent a copy) purporting to be a Notice of Assignment dated 25/11/2008 from Robinson Way. It gives no balances or anything apart from account numbers. Quite honestly it looks like it was drawn up by them this morning and faxed to sols.

 

2. DJ just accepted this as a proper assignment and therefore I must owe Robinson Way.

 

3. I pointed out that as this had just been handed to me it should not be taken into account as I had not been given opportunity to take advice on the document. I pointed out that I did not believe it was a proper notice of assignment.

 

4. No other docs produced and DJ ignorred the point I made regarding the POC only refering to "a credit agreement..". In fact when I pointed out claimants failure to produce any docs reqd in my 31.14 letter and that at the very least I would have expected they would have provided a copy of the said credit agreement, the other side confirmed that they were unable to find an agreement. I asked how can they bring an action on an agreement when one doesn,t exist. Noted by DJ but no comment.

 

5. With regard to irregular Judgment. This was dismissed out of hand by DJ saying that the offer made was unacceptable as it would take too long to repay money allegedly owed. I said that I believed that it is not for the court to take a view as to how long it would take to repay a debt, it was for the court to determine what the debtor could reaslistically afford to pay which would be reassessed at a later date. Again ignorred.

 

6. The other side referred to a letter I had sent claimant 30/01/09 in which I refered to money that I owed to Capital One that they had agreed not to pursue. The DJ took that as an admission that I must owe the money and together with the newly printed notice of assignment concluded that I would not be able to defend the claim and dismissed set aside.

 

7. I reminded the DJ that the claimant had failed to follow any procedures in CCA and that failure to follow them does not allow them to enforce a debt.

 

8. Whilst I could not deny that money was owed at one time to Capital one I pointed out to DJ that I believed it would not be enforceable and that I did not accept that it had been properly assigned to the claimant. Again DJ took no notice.

 

9. Charging order adjourned for 6 weeks to allow them time to contact my other creditor to see if any objections.

 

So walked out completely dejected and downtroden now I feel angry as I believe that I did keep calm and beleive that I presented my case reasonably well but was I treated fairly by the court DEFINATELY NO. Did the court take account of the CCA 1974 DEFINATELY NO. I think the other side was nearly as surprised as me as they wanted to talk to me beforehand and I said I didn't want to talk to them and they said all they wanted to know was would I be asking for costs and what they would be as their seemed little point in going over anything else!!

 

Appart from alcohol tonight, I just feel like getting in the car with my wife and kids and drive far away from this blXXdy awful country. Please help, what can I do now. I can't give up on this as I believe that i have now been treated unfaily by the claimant and the court. I am a fighter that never gives up in what I beleive in but need some direction with this.

Link to post
Share on other sites

Oh Robin, I am so sorry to hear this. :(

 

I am not sure what you can do.. I will ask around for you.

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

Link to post
Share on other sites

:) Easy for me to say, but try and forget about it over the weekend. Look at it with fresh eyes in a couple of days.

 

I am sure someone will look in over the weekend and offer advice. :)

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

Link to post
Share on other sites

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

  • Haha 2
Link to post
Share on other sites

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

Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

Link to post
Share on other sites

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).

 

 

 

Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

Link to post
Share on other sites

well i have to say the judge should be ashamed

Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

Link to post
Share on other sites

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

Link to post
Share on other sites

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.

Link to post
Share on other sites

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

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

Link to post
Share on other sites

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

Link to post
Share on other sites

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!)

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

Link to post
Share on other sites

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

Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

Link to post
Share on other sites

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? :confused:

 

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.

Link to post
Share on other sites

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. :)

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

Link to post
Share on other sites

just one question have you sar the orginal creditor,

 

if not why not

Id quot circumiret, circumveniat.

 

please do not take my word for anything please do your own research All that i make comments on are done in good faith and to the best of my knowledge

Link to post
Share on other sites

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.

Link to post
Share on other sites
  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...