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

[RobinWayRobinme]

Thanx R&B

[RobinWayRobinme]

Hi all

Quite an important question but may show my ignorrance or me being shell shocked. Who should sent me a notoice of assignment? Should it be the OC or the Claimant?

 

Just doing lots of research at mo concerning my appeal.

 

 

[lilly white]

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—

[RobinWayRobinme]

Sorry lilly don't fully understand but are you saying that a) deed of assignment must be done first the; b) Notice of Assignment must be sent by assignor.

[lilly white]

what i am saying is that you should have been informed by the orginal creditor.

 

Also they should be put to proof that it was sent.

 

Also they must have a deed of assignment.

 

In lay mans terms i could sent you a letter say you owe me xxxxxx would you pay me,

 

regards lilly

[RobinWayRobinme]

As I thought lilly. Its just when you have such a knock back like I did last friday you start to doubt yourself.

 

Been spending lots of time researching appeals so will have many questions of help on this over next few days. Spoke to court and I should have the order made last friday by monday. One question at moment, should I start to make arrangements to get a transcript of the hearing?

 

Thanx for keeping an eye on my thread lilly, you have given some very helpful advice.

 

R

[lilly white]

yes

[RobinWayRobinme]

OK 2 things now.

 

1. Order received in post today dismissing my set aside which enables me to continue with my application to appeal. On the charging order it confirms adjornment but DJ did say at hearing adjornment should be for 6 weeks but has been adjorned to middle of december! Will need help with form please.

 

2. 40 days is just about up on SAR to original creditor and I have drafted my Letter Before Action. I have posted this below and would appreciate comments on this.

 

 

LETTER BEFORE ACTION

 

 

Section 7, Data Protection Act 1998

 

 

Dear Sir,

 

Subject name : Mr RoninWay

Subject address :

Account Number:

 

You have failed to comply with my Data Protection Act Subject Access Request dated 1st August 2009. A copy of this request is attached and I would advise you that this request was sent by first class recorded delivery and I have proof of delivery to you on the 4th August 2009. You have failed to provide any information within the statutory period of 40 days and are therefore in breach of the Data Protection Act.

 

If you fail to comply with my Subject Access Request within the next 14 days, without further reference to yourself, I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and a formal complaint will be made to the Information Commissioner.

 

Yours faithfully

Robin

 

Right, now completing Appellants notice so would like to run through this.

 

Section 1 - Im OK with.

 

Section 2 - Nature of Decision. Shouls I just tick "final decision".

 

Section 3 - Im OK with.

 

Section 4 - Im OK with.

 

Section 5 - I wish to appeal the decision to dismiss the Defendants application to set aside jufgment entered against him on xx/xx/2009.

Assume answer no to issues re Humans Rights Act and other yes/no as No, Yes, No (Therefore Section 8 not needed).

 

Section 6 - Im OK with.

 

Section 7 - Ticked vary order to "The judgment for Claimant entered against the Defendant on xx/xx/2009 be set aside.

Should I leave it at this or should I also ask for an order for costs.

 

Section 8 & 9 Not completed

 

Once got through this part I will work through checklist of docs to go with notice, but one step at time. Anyhow, much appreciated help needed on this now

 

R

[citizenB]

OK 2 things now.

 

1. Order received in post today dismissing my set aside which enables me to continue with my application to appeal. On the charging order it confirms adjornment but DJ did say at hearing adjornment should be for 6 weeks but has been adjorned to middle of december! Will need help with form please.

 

2. 40 days is just about up on SAR to original creditor and I have drafted my Letter Before Action. I have posted this below and would appreciate comments on this.

 

 

LETTER BEFORE ACTION

 

 

Section 7, Data Protection Act 1998

 

 

Dear Sir,

 

Subject name : Mr RoninWay

Subject address :

Account Number:

 

You have failed to comply with my Data Protection Act Subject Access Request dated 1st August 2009. A copy of this request is attached and I would advise you that this request was sent by first class recorded delivery and I have proof of delivery to you on the 4th August 2009. You have failed to provide any information within the statutory period of 40 days and are therefore in breach of the Data Protection Act.

 

If you fail to comply with my Subject Access Request within the next 14 days, without further reference to yourself, I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and a formal complaint will be made to the Information Commissioner.

 

Yours faithfully

Robin

 

The letter I used for a recent non compliance is shown below:.

 

How did you send the statutory fee of £10.00 was it by cheque or postal order ?. If by cheque then you should be able to see if it has been banked.

 

If by postal order then you need to check that. The telephone number is:. 01246 542091. It is a direct line and the people are extremely helpful. You will need the receipt you were given at the post office when you purchased the postal order because they will ask for the ID number from it. If it is confirmed as cashed, then ask if they will very kindly write to you advising that is has been and on what date.

 

Attention : Data Controller

LETTER BEFORE ACTION

SECTION 7 - DATA PROTECTION ACT 1998

Dear Sir/Madam

Account Refs:

You have failed to comply with my Data Protection Act Subject Access Request dated XX XXXX XXXX. A copy of that request is enclosed for ease of reference.

 

This was received and signed for by XX XXXX XXXX. The postal order in the sum of £10.00, was cashed on XX XXXX XXXX.

If you do not comply within the next 14 days, I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice.

 

Yours faithfully

 

 

 

 

 

I dont have any knowledge of appeal procedures.. so I will have a scout round and see what I can find for you.

[RobinWayRobinme]

Once again citizenb there when I need your help so again thank you. I'll give the number a call (guess the number is Mon-Frid so will ring Mon morn as was a PO.

With the appeal you kindly inroduced me to x20 and I have pm'd him and I'm sure when he is next on he will look in.

 

Think I've got a busy time ahead:D

 

R

Edited September 12, 2009 by RobinWayRobinme
missed something out

[citizenB]

Hi Robin, yes I believe they are available 9-6 on that number.

 

You might want to have a read of this thread. . There is an appeal in progress, although the thread starts off as a normal hearing much the same as yours.

 

pt2537 and X20 amongst others have contributed to the thread and it looks as though there would be information of use to you.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/144119-hfo-court-claim.html

[RobinWayRobinme]

Will do citizenb. Must admit I've been spending a lot of time searching on here for similar cases and have learnt so much. Massive learning curve though and will definitely need my eyes tested soon:-)

 

If you are looking in lilly white I have a question for you. Been reading though so many threads but not sure if penny beginning to drop with me regarding your point in claiming declaratory relief. When completing my appellants notice could I apply for permission to file a counterclaim for declaratory relief?

 

Thinking about this, if your answer was yes, should the counterclaim be on the original creditor. Or am I just jumping ahead of myself abit with this?

[lilly white]

l i would once i had seen the cca

 

this is a defence that pt did in regards to the cca

 

16. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. They cannot be found in a secondary document as according to section 61(1) (a)(b) &©, the agreement must at the time it is laid before the debtor contain all the terms of agreement

 

17. Furthermore, section 2 of the Consumer Credit Agreement Regulations 1983 clearly states

2 Form and content of regulated consumer credit agreements

 

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it relates to the type of agreement referred to in Column 1.

18. Furthermore I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

19. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

20. Notwithstanding point 15, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

The Courts Power of Enforcement

 

21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

22. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

23. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act.i refer to the judgment of Lord Nicholls of Birkenhead below....

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

24. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

25. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

26. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

27. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956,as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts

 

28. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

29. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit CP xxx) unenforceable.

 

 

 

it should be to the owner of the debt once they proved the own the debt.

 

ie once they shown the deed of assigment so part of your defence

[RobinWayRobinme]

thanx for that lilly.

Bearing in mind that at the set aside hearing sols for claimant confirmed in court (will come out in transcript) that the claimant does not have a credit agreement (the only doc referred to in their POC). The original creditor exceed the 40days +2 on Wednesday and nothing from them so will send OC letter before action on Wednesday giving 14 days. Don't believe they will come up with anything. There must be a point when its accepted that there is no CCA and therefore debt unenforceable, but when do we get to that point?:-?

R

[lilly white]

Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit CP xxx) unenforceable.

 

I belive thats the point

[RobinWayRobinme]

so it seems to get back to an attack on 2 sides.

 

1. I pursue my appeal and hopefully get my set aside. The Claimant then still relies on their poc that just relies on CCA that they don't have then I get their statement of case struck out matter over.

 

2. I follow up SAR to oc and take them to court as a seperate action for non compliance.

 

In either case if no cca counterclaim for declaratory relief.

 

I know this is in simple terms but have I got it right?

R

[lilly white]

yes that is it, a cunning plan.

 

May i wish you good luck ,i do belive that you are now better informed to take this case forward.

 

Best regards lilly, i must away now, however i will keep a look out keep us posted

[RobinWayRobinme]

thanx for your help lilly

[r&b]

hi robin,

looks like you and lilly have it all under control.

i just wonder whether there is a case for endeavouring to attack the original judgment head on, rather than going thru the appeal for set aside and, if successful, them undoubtedly not pursuing the debt further, leaving u with a dodgy credit file for 6 years.

i dont know the answer, just putting an idea forward. could a fresh action not be taken, appealing the original judgment on the basis of new evidence (no CCA, admitted by the other side) adding the s142 and clearance of credit file in that action so that if successful, the whole claim is thrown out and ur credit file is cleared in one foul swoop so to speak?

just a thought.

[RobinWayRobinme]

I see where you are going r&b. Now thats a thought!! My thoughts before your thread was to attack the judgment with the appeal and set aside. At same time follow through SAR and then go for counterclaim for declaratory relief, which I belived would also involve getting their statement of case dismissed.

 

If i was to attack the original judgment on basis you put forward I would assume I would still need transcript of set aside hearing as that would be my new evidence (no CCA admitted by other side). WHen transcript recieved, put in an out of time appeal against original judgment, which should be allowed in view of new evidence. Bottom line is same result, but maybe easier route. At same time continue to follow through SAR with original creditor with aim to claim back everything paid over the past 6 years. Sneaky .

 

Have I got the logic right?

 

I always believe that there is always more than one way to skin a cat.

R

[r&b]

hi robin,

if possible it makes sense to me to take out the original judgment in one hit rather than leave it flailing around unresolved. as i say im unsure of the legal process required so unless anyone on here can shed some light it may be an idea to consult that barrister you talked of previously for an opinion. id certainly be interested myself.

i would get all the evidence collated that u possibly can and an admission on a court transcript regarding no CCA doesnt come any better does it:D

ive never gone that far down the SAR route but i know supasnooper of the site team regularly advocates an aggressive stance and the method required, so perhaps search around or PM him if u havent got it already, tho i think CB has possibly given u the reqd info already.

sorry i cant be of more help.

[RobinWayRobinme]

You have been of great help R&B. I am working on a brief at his time for counsel and will now include this other tactic. Will let you know the outcome. However in meantime I'm continuing to complete appellants notice myself as clock is ticking on that but will need further help from the likes of x20.

Thanx for keeping an eye on this.

I'm working on this most of today but will lose my broadband connection soon as just had call from BT engineer as still having probs with download speed. When back online will post update.

R

[supasnooper]

Have a look at this link regarding court action for compliance of SAR -

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/49571-havinastella-lloyds-tsb-3.html#post1592782

 

 

If you pursue this route the court fee cost will be £30.00 unless you can claim fee remission -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/195872-court-fees-remission.html

Edited September 14, 2009 by supasnooper
added links

[RobinWayRobinme]

Just got my line back up. Thanx for looking in supasnooper. I will look through the link. I am determined to pursue all avenues and your help in pointing me in right direction is much appreciated.

 

Just found out that postal order sent with sar was cashed on 07/08/09. Thanks again citizenb, more wood for the fire

[citizenB]

Excellent, did you ask the post office to confirm it in writing for you ?