Welcome - illegal repo in contravention of section 92 and unfair relationship ** WON **

[wannabedebtfreesoon]

A whole host of different rules apply when making consumer credit act claims. Obtaining judgement by default is not possible. I do find this a bit odd though as I have seen others win by default when using this procedure. Oh well, so far it seems good to me

They have 14 days to either pay the amount claimed, make an offer or dispute the claim. If they ignore judgement can be entered against them, although it will still be down to the judge I think.

[beyondhope]

It does sound pretty reliant on the judge but that can only be a good thing with all the info you have submitted

So I guess if they ignore its still sort of winning by default just for the judge to decide what they are liable for

[wannabedebtfreesoon]

The bonus here is that they won't be able to get away with it!! The judgement by default means there is never any blame and they don't have to accept any liability. This way, however, a judge will decide and they will have to accept liability if the judgement goes against them

If they ignore they will be liable for further costs on top of the amount I claimed

They can still dispute but it'll be up to the judge on the day to decide if they have a valid defence or not.

The fact is that this is an Originating Application that is brought under the authority of a specific Act, so what is there for a judge to decide?? It either breaks the law or it doesn't.

[beyondhope]

Makes perfect sense to me

[wannabedebtfreesoon]

and they have to have their defence filed within 14 days, even though the hearing isn't for 28 days! It doesn't look good if they file late and expect to rely on it at the hearing.

[beyondhope]

I hadnt heard of it being done this way (not that that means anything lol) do you think it may be down to the value of the claim its been sent this way?

[wannabedebtfreesoon]

I suppose I'll wait the 14 days then contact the court to see if they've responded. I have no problem going to court, I know my poc inside out and back to front and I relish the opportunity to show and tell my masterpiece

 

P.s. Hello Guest

[beyondhope]

Is this a case they can defend without attending? I know some routes you have to attend and some you dont.

 

So within 28days this could all be sorted for you (best case scenerio)

Edited April 8, 2010 by beyondhope
typo

[wannabedebtfreesoon]

PRACTICE DIRECTION 7B – CONSUMER CREDIT ACT 2006 – UNFAIR RELATIONSHIPS - Ministry of Justice

 

I quoted from this in my poc, it's by the ministry of justice so there's no doubt about what's right and what's not!

It tells all about the civil procedure rules for unfair relationships and what sections of the act are covered by it.

 

I'm sure they do have to attend the hearing, it would look very bad if they didn't, in fact I think it counts as admission but don't quote me on that!!

They have a form to fill in and send back within 14 days if they want to dispute the claim but it has to include their defence. The judge can still decide their defence is not valid on the day tho.

 

They have to respond to the claim within 14 days, they can do this by either paying me the amount I've claimed, making an offer or disputing the claim. So best case scenario, I get a cheque for the full amount within 14 days Forgive me for not holding my breath tho!!!

 

If they try to dispute and the judge rules against them, well that leaves them open to all sorts of things. I'm sure the press will have a field day with this one!!

[beyondhope]

oooo interesting reading thanks for sharing

 

I see it stays where the 'debtor' resides so unlikely t be transferred to notts anyway then

 

I would hold ya breath blue is not this season colour

[wannabedebtfreesoon]

It wouldn't be transferred to Notts anyway. It only gets transferred to the defendant's home court if they are an individual, because they are a company it will stay in your home court

[beyondhope]

20th is submission day for me unless someone gets an attack of sense and makes me an offer before then again no holding of breaths please

[wannabedebtfreesoon]

Good for you! At least you know kind of what you can expect now. I'll keep you informed as I go along

[wannabedebtfreesoon]

Hello Cab, it's all good thanks. N1 filed on 1st April, (no joke!), I received the notice of issue on 8th April, it'd been served on the 6th and we have a hearing on the 6th May

 

They've got until the 22nd I believe to either pay up, make an offer or dispute. I can't win by default, it has to go before a judge, but if they ignore or dispute later than the 14days and then rely on that defence at the hearing it really, really won't look good!

Apparently they don't have to submit a defence but if they do it has to be filed within the 14 days.

 

Personally, I'd love to hear their defence! So far it seems to consist of "we served all the right notices" and "well the police didn't say we couldn't come on to your premises and take it". They'd have to have some significant balls to put that in front of a judge and expect to come away unscathed!!

 

So it's just the waiting game at the minute

I don't mind tho, at least the hardest part is over and I've got plenty to keep me busy in the meantime. I'm up with my dog at this ungodly hour, she's been having puppies since 3am! 5 so far

 

I'll keep posting as soon as I hear anything from them, (if I hear anything!).

[beyondhope]

So im assuming should a defence not appear by next week then they arent defending and its down to the judge whats awarded and why? Id love them to take those reasonings in front of a judge - should they dare please please record the judges reaction

 

Awwww puppies congrats xxx

[wannabedebtfreesoon]

I can't win by default because I am using the Consumer Credit Act Procedure and there are set rules that apply-

 

 

"The Consumer Credit Act procedure

 

5.1

 

In the types of claim to which paragraph 3 applies the court will fix a hearing date on the issue of the claim form.

 

5.2

 

The particulars of claim must be served with the claim form.

 

5.3

 

Where a claimant is using the Consumer Credit Act procedure, the defendant to the claim is not required to:

(1) serve an acknowledgement of service, or

 

(2) file a defence, although he may choose to do so.

 

 

5.4

 

Where a defendant intends to defend a claim, his defence should be filed within 14 days of service of the particulars of claim. If the defendant fails to file a defence within this period, but later relies on it, the court may take such a failure into account as a factor when deciding what order to make about costs.

 

5.5

 

Part 12 (default judgement) does not apply where the claimant is using the Consumer Credit Act procedure.

 

5.6

 

Each party must be given at least 28 days’ notice of the hearing date.

 

5.7

 

Where the claimant serves the claim form, he must serve notice of the hearing date at the same time, unless the hearing date is specified in the claim form."

[wannabedebtfreesoon]

Having looked in to it further, it seems slightly more straightforward than that I think.

Unless I'm mistaken, the judge only needs to make a decision if they dispute the claim and then it'll be a decision based on whether their defence is valid or not.

 

Ultimately, on the day the prominent decision made by the judge will be about what costs to award.

 

But this is only my interpretation of it from the ministry of justice and hm courts websites

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n1fd_0406.pdf

 

Maybe somebody could offer their opinion please???

[cab1ne]

i find this angle very interesting (as i know totally zilch about it).

so if they just totally ignore it, what costs would you achieve out of it.

 

cab

[wannabedebtfreesoon]

Yes I know, I'm still learning every day! I'm still not quite sure why it's happened like this with my case but I've seen it be different with other people's cases. Maybe that they didn't outline their cases as being CCA cases or go for the unfair relationship part of it?? Who knows

 

This is where I did most of my reading-

PRACTICE DIRECTION 7B – CONSUMER CREDIT ACT 2006 – UNFAIR RELATIONSHIPS - Ministry of Justice

[wannabedebtfreesoon]

To be honest I haven't got the foggiest!! I would expect it would be down to the judge to decide and if it gets that far I was sort of planning to go with the flow, not very scientific I know!

 

It was this part of the form that made me think it would be the decision of the court-

 

"If you send your defence to the court after the 14 days has

expired, and you want to rely on it at the hearing, the

court may take your failure to file it on time into account

when deciding what order to make in respect of costs."

[wannabedebtfreesoon]

Also, I really don't think they can afford to totally ignore this. It's not the same as losing by default where there is never any admission of liability. It will go before a judge and there will be a decision made on liability. If the courts decide they were wrong to do what they did, floodgates will open!

[cab1ne]

i'll have to do some serious reading on that one, it seems pretty straight forward on the face of it, but when you get down to it, it kind of goes "blah blah blah". maybe a legal bod could put some clarity on it for us (regarding the cost levels).

 

cab

[wannabedebtfreesoon]

I'm not 100% sure I follow!

We all know the law and what they can and can't do but what we can't seem to find is what happens in consequence when they break the law like this. It's not like section 90 where the consequences of breach are stated in the Act itself.

 

This is why I'm going down the unfair relationship route because at least there are set "powers of the court" stated in the 2006 Act.

[cab1ne]

"BINGO" now i am getting the jist of things now (my apologies). the 2006 act and unfair relation ships. i am confusing myself with the 1974 act pre april 2007, (reality check). now your planting the seeds of knowledge (much appreciated) "NICE":D

 

cab

[wannabedebtfreesoon]

Yay! I'm glad it's not me making stuff up! Cos the link I put in post 162 that outlines the CCA procedure is all about unfair relationships and the 2006 Act