Capital (one) Justice

[pawnbrokers]

BD, now thats my twisted kind of reasoning - luv it -PB

[Bigdebtor]

Thanks PB. Does that not deserve my scales being tipped? I don't think anyone has yet - and in over 100 posts I have suggested even worse things before! (not that I'm apologising!) BD

[pawnbrokers]

bd - just gave your scale a tip, Great twisted reasoning - dont stop - PB

[Bigdebtor]

Thanks PB - the best is yet to come!

 

BD

[pawnbrokers]

BD -your welcome - and look forward to your threads -pb

[diddydicky]

Hi Diddy and all.

 

I have received a cheque from Cap 1. Full payment £95. What a let down.

I should not have sent them the copy of the Court order.

Never Mind, onward and upward.

 

I have also had an e-mail from that nice mr. Berman telling me that wendy starr is dealing personaly with my requests (demands?). She has been out of the office but will e-mail me on the 24th. I wonder if mentioning the national press had anything to do with the unexpectedly cordial e-mail?

 

Cit B I am about to PM you.

 

what cheque? (smirk)

[johnerog]

what cheque? (smirk)

 

Hi Diddy.

Unfortunately. I have banked the cheque. Never mind, i am working on the next one.

Please give some thought to my post on the 26th.

john

[johnerog]

Hello all.

Is there anything on this site similar to "why you should not use section 77/78 etc" but with regard to S142. I realy do need some pointers.

[citizenB]

Hello all.

Is there anything on this site similar to "why you should not use section 77/78 etc" but with regard to S142. I realy do need some pointers.

 

erm, dont know.. I am sure someone will be able to help.. meanwhile I will have a look and see if I can find something.

[42man]

You might find some udeful info in here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115280-useful-information.html

[johnerog]

Thank you both for trying. I have looked at the suggested material and please believe I've really looked, but nothing so far.

 

Am I right in thinking that I need the following:

1. Application Form (n244).

2. Witness statement.

3. POC.

 

Is this format the same in all types of cases?

[johnerog]

Can I use Part 8 Special procedure for this? Or perhaps summary judgement?

 

Hello..... Hello... is anybody out there? I'm getting very lonely.

[the_shadow]

Can I use Part 8 Special procedure for this? Or perhaps summary judgement?

 

Hello..... Hello... is anybody out there? I'm getting very lonely.

 

Trouble is you are asking for really specific legal info, most people on here's experience in courts will be defending rather than taking a bank/dca to court.

 

I believe PT2537 has stated in his "why you shouldnt use s77/78....." thread that you'll need to apply to the court for a declaration under s142 using N244 app form and witness statement and evidence bundle to support this.

 

S.

[pawnbrokers]

johnerog, seems like your pathfinding, theres lots here looking to see what you end up with - good luck, await your final conclusions and actions with great interest - pb

[basa48]

Trouble is you are asking for really specific legal info, most people on here's experience in courts will be defending rather than taking a bank/dca to court.

 

I believe PT2537 has stated in his "why you shouldnt use s77/78....." thread that you'll need to apply to the court for a declaration under s142 using N244 app form and witness statement and evidence bundle to support this.

 

S.

 

I would have used an N1.

[johnerog]

Trouble is you are asking for really specific legal info, most people on here's experience in courts will be defending rather than taking a bank/dca to court.

 

I believe PT2537 has stated in his "why you shouldnt use s77/78....." thread that you'll need to apply to the court for a declaration under s142 using N244 app form and witness statement and evidence bundle to support this.

 

S.

Hello Shadow thank's for your input.

Problem.. Cap One have admitted in writing they have no agreement. In, I think, the Rankine case the judge said that as there was no agreement it could not be challenged under s142. Now, we all know that was an appalling decision but has it been appealed or have other people in my position used s142 succesfully.

From the research I have made it appears that "if a case is unlikely to involve a major dispute of fact then it may be better to use Part 8 Special procedure". Well its a fact they have no agreement.

Or; perhaps I could ask for Summary Judgement now that Cap One have admitted they have have no agreement. Why should they be allowed to break Data Regulations.

The Rankine decision left the matter open ended which to my mind is a vacuum that needs to be filled. The company could not be challenged but could do as they wished without any legal control with regards to data sharing. This cannot be right.

 

Comments Please.

 

Pawnbroker thank you.

[the_shadow]

Hello Shadow thank's for your input.

Problem.. Cap One have admitted in writing they have no agreement. In, I think, the Rankine case the judge said that as there was no agreement it could not be challenged under s142. Now, we all know that was an appalling decision but has it been appealed or have other people in my position used s142 succesfully.

From the research I have made it appears that "if a case is unlikely to involve a major dispute of fact then it may be better to use Part 8 Special procedure". Well its a fact they have no agreement.

Or; perhaps I could ask for Summary Judgement now that Cap One have admitted they have have no agreement. Why should they be allowed to break Data Regulations.

The Rankine decision left the matter open ended which to my mind is a vacuum that needs to be filled. The company could not be challenged but could do as they wished without any legal control with regards to data sharing. This cannot be right.

 

Comments Please.

 

Pawnbroker thank you.

 

Ok, another route is an "injunction against enforcement" order, I'm afraid I know nothing more than the name, but if you look at the smt37 vs MSDW thread (the cpr31.16 one) the judge suggested it was the way forward if barclays couldnt find the agreement and this was backed up with PT stating the same.

 

S.

[the_shadow]

Oh and in answer to your question, Rankines hasnt been appealed further I dont think

 

Although most good solicitors/barristers and goode avoid that ruling at the best of times.

 

S.

[johnerog]

Many thanks Shadow.

[basa48]

Ok, another route is an "injunction against enforcement" order, I'm afraid I know nothing more than the name, but if you look at the smt37 vs MSDW thread (the cpr31.16 one) the judge suggested it was the way forward if barclays couldnt find the agreement and this was backed up with PT stating the same.

 

S.

 

Interesting. In my case against SDFC where it too is admitted there is no agreement, the judge before he adjourned the set side hearing (it is the creditor applying to set aside my default judgement against them) suggested that I should have used part 8?

[johnerog]

Interesting. In my case against SDFC where it too is admitted there is no agreement, the judge before he adjourned the set side hearing (it is the creditor applying to set aside my default judgement against them) suggested that I should have used part 8?

 

Sorry for the delay in reply I've been off line for a couple of days.

 

Basa I find this very interesting!!! It does make sense, how much do you know about it?

I wonder if an injunction against sharing my data could be included.

 

Can we debate please.

[basa48]

Sorry for the delay in reply I've been off line for a couple of days.

 

Basa I find this very interesting!!! It does make sense, how much do you know about it?

I wonder if an injunction against sharing my data could be included.

 

Can we debate please.

 

I don't really know a great deal, all I know is the judge looked at my PoC and the judgement and said it should have been on a part 8 basis.

 

My claim was for a declaration (s.142), removal of DN and cash. The judgement was for the cash only.

 

As the judge did look at the whole claim and the defendant (creditor) did reply to the whole claim, I am hoping it might all be looked at in January.

 

TBH I still think part 7 is the correct usage.

 

I did look into injunctive relief but I read injunctions always go multi-track. Have you seen the cost of multi-track?

 

As far as I can see, with no agreement, they are in default of s.78(6) and cannot enforce; with an unenforceable agreement you can apply for s.142 declaration.

 

I'm still a little nervous the High Court might allow creditors to supply 'reconstituted' agreements.

[johnerog]

Hello Basa

Do you think the judge was commenting on the whole case or part of it?

 

On the injunction to stop passing info front I think we have a case via the Info Commission. But that could take months although I believe we can claim damages.

 

I am still wary on the Rankine front. The Judge(?) stated that as there was no agreement there could be no s142 thats why the part 8 interest me so much. Although Rankine is a bad case I think they may try to use it as a last gasp.

 

They cannot reconsitute a signature!! they have to bring the original document to court. check out 31.14 How to get them to reveal. It well worth the trouble, sorry can't remember who posted it but its excellent.

 

Can you please clarify part 7? Have you posted your POC?

 

John

P.S any comments welcome

[johnerog]

Sorry Basa, May I ask how you calculated you cash claim, I don't mean details just how.

John

[basa48]

Hello Basa

Do you think the judge was commenting on the whole case or part of it?

 

On the injunction to stop passing info front I think we have a case via the Info Commission. But that could take months although I believe we can claim damages.

 

I am still wary on the Rankine front. The Judge(?) stated that as there was no agreement there could be no s142 thats why the part 8 interest me so much. Although Rankine is a bad case I think they may try to use it as a last gasp.

 

They cannot reconsitute a signature!! they have to bring the original document to court. check out 31.14 How to get them to reveal. It well worth the trouble, sorry can't remember who posted it but its excellent.

 

Can you please clarify part 7? Have you posted your POC?

 

John

P.S any comments welcome

 

I think he was commenting on the whole case, cash, declaration and default removal.

 

The ICO are no help at all in default removal. They think ANY transactional history implies consent and a business right to process. I still intend to argue my case under the DPA though.

 

Using Part 8 instead of Part 7 makes no difference to the basis of your arguments.

 

Rankine is a bad case as is McGuffick (similar premis of no agreement). In Rankine the judge argued no agreement means no 142 declaration. In McGuffick no agreement means no enforcement.

 

However no creditor can enforce without an agreement.

 

No they can't reconstitute a signature, but I fear the High Court might rule that a reconstituted agreement WITHOUT a signature can prove an enforceable agreement, but I don't know how that might work in practice.

 

I've read that thread several times ("why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement" - PT2537). It is an excellent WIP.

 

But IMO it is useful only where a creditor cannot or will not disclose an agreement prior to action.

 

I haven't posted PoC, but my thread is here: http://www.consumeractiongroup.co.uk/forum/legal-issues/222131-opposing-set-aside.html

 

I'm not 100% clear on Part 7/8. Part 7 is the usual for money and/or legal argument. Part 8 is for cases where "A claimant seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact".