Capquest claimform - old Citi card debt

[colin21958]

Colin

 

Can you put a succinct summary of where you are in the process and what your case is. I may then be able to help. I haven't got time to read the thread

 

Hi Steven,

 

This is gramtrad2's thread so he/she should be able to tell you what help is needed. I understand an appeal has to be submitted and time is running out... Hopefully gramtrad2 will turn up soon and tell you what is needed...

[colin21958]

...

 

In a nutshell - MBNA sold the debt to CL Finance who secured a CCJ against me. I challenged this in the court and the judge threw out my case. He denied me and appeal; his reasons are set out in the appended document. So, I am now faced with appealing to the Circuit Judges and have obtained the necessary forms.

 

With regards to my appeal, the feeling from contributors so far is that the judge got it wrong. This is DonkeyB's take on it :

 

"........Points judge has noted:

 

1. "Nothing S87 (Consumer Credit Act which prevented assignment of debt during default notice period" (sic)

BUT - the account was terminated during that period, which is unlawful, a fact verified by the claimant's WS.

 

2. "The default notice complied with S88 Consumer Credit Act"

Easy to disprove. It clearly did not comply - this is a question of fact, not judgment.

 

3. "Satisfied as to service"

No-one has denied it has been served - only when. However, this element is tot crucial to an appeal.

 

I feel the judge has made the appeal route a simple one......."

 

I would be most grateful for some help in drafting my appeal. I did the last court submission myself and was put down by the judge who said that it was not in the usual format and was more of a letter rather than a proper case!

 

This one needs to be lazer targeted to leave the buggers no room for wriggling!

 

Much appreciated.

 

The draft appeal is on this post: http://www.consumeractiongroup.co.uk/forum/legal-issues/260905-help-appeal-please-6.html#post2956742

[citizenB]

Not quite sure what assistance you required, gramtrad.. but I have posted some Appeal notes that might help

 

BRW on Appealing

 

http://www.consumeractiongroup.co.uk...t-2927407.html

 

This is just some general advice on how to handle an Appeal (taken from one of my other ramblings elsewhere on CAG), which may be of interest to both you/Fred and any other genuine Caggers that may like to know.

 

Fred has 21 days to get his Appeal in, and whilst it may seem daunting, it's not as bad as it seems, provided he gets started and works through all of the steps to get everything ready in time for the 21 day Deadline.

 

This is the bit of CPR Fred needs to start reading:

 

PART 52 - APPEALS - Ministry of Justice

 

This is the CPR Supplement that goes with the above:

 

PRACTICE DIRECTION 52 – APPEALS - Ministry of Justice

 

A key admin step is to get a Transcript of the Judgement going. That should not be too expensive, maybe £100-£150 approx. You will need that for the Appeal. That needs Form EX107. Here's the link:

 

EX107

 

That is just a simple Form where you state what the Claim was, and say which Transcriber you will like to use. I can recommend a very good one, but I need to advise the name via PM not in open Forum. The person is listed in the Approved List of Court Transcribers and has been very helpful now to several Caggers.

 

If Fred can afford it, I would also recommend that he has the Full Hearing Transcribed in addition to the Judgment.

 

To clarify, the Hearing is always divided into two key areas when it comes to Transcribing the Tape(s):

The Main Hearing (less the Judgment).

The Judgment.

There can only ever be one Judgment Transcription, because the Judge has the right to check and adjust that, before allowing it to be released. In my experience, be prepared for some changes there to soften how things were actually said in Court! But there's nothing you can do, just get a copy of the Judgment, and allow time to organise that and be prepared that the Judge will want to see it to approve it, before Fred sees it. Best therefore to crack on with that ASAP.

 

I would advise trying to get the Main Hearing as well, although that will cost a lot more, depending on the number of spoken words and the time the Hearing took. But this can prove invaluable. Fred needs this if he can afford it.

 

Transcriptions can be paid for by the Court, if Fred is on a very low income etc, but he has to pay for them first before he can re-claim the costs. It also takes a long time to get any money back from the Courts.

 

On this subject, see CPR Part 52, 5.17 and 5.18 (that's all in the 2nd link above).

 

N460

 

This is a Form the Judge has to complete if an Appeal was requested and refused on the day. In that case, the Judge is supposed to complete an N460 straight away, rather than being asked.

 

So, if needed, get the Court to chase up the Judge to complete Form N460. That Form is very simple, and just sets out the reasons for refusing the Appeal. Those reasons may also be mentioned in the Judgment as well.

 

There will be an N24 Order that will appear soon too, that's a bit like a précis of the Judgment but should not be confused with the Judgment Transcription which will be much longer than what you see on the N24 Order. Fred will also need that N24 Order for his Appeal Application. That should arrive in the next few days anyway.

 

Fred should be able to get that lot underway in maybe a day or two at most, then you can work on getting his N161 Appellant's Notice ready.

 

The N161 Appellant's Notice is just another Form, many on CAG will help you with that, so don't worry. Here's the link:

 

N161 Appellant's Notice

 

That just leaves the key issues of:

 

(1) Grounds for Appeal:

 

This is the main bit that you need to get sorted within the 21 days, and have it ready to go along with the Appeal Bundle.

 

The main initial documents, provided you get them on time, will comprise the following bits:

 

N161 Appellant's Notice (including Grounds for Appeal)

N24 Order

N460 Reasons for Appeal Refusal (if needed)

Transcript of Judgment

 

It is VIP that you get that lot in within 21 days. Otherwise you risk having to make an Appeal Out of Time, which is a PITA. Get it in on time, and you then you have a further 14 days to follow on with the full Appeal Bundle.

 

That Bundle will include a Skeleton Argument and a routine pile of bumf that relates to the Judgment being Appealed. Most of the docs Fred will have had from the first time around, so the Appeal can be considered for permission to Appeal if that is also needed (i.e. if permission was refused at the Hearing).

 

(2) Route for Appeal:

 

This is just technical and will depend on what Judge you had, and the class of the Judgment the Judge made. It is all listed in the 2nd link above, or just click here:

 

PRACTICE DIRECTION 52 – APPEALS - Ministry of Justice

 

This is Fred's chance to put right what the buggers did wrong the first time out.

 

Get this right, and the opposition will be more worried than you are right now once they know you are Appealing.

 

The most this will cost Fred right now is the Judgment Transcription. He can always back out before the 21 day deadline and just accept the original Judgment, so do keep going and use the time to decide before the 21 days are up.

 

However, don't waste any time getting going, as 21 days is not long and you cannot afford to waste any of it.

 

Once the Appeal has been lodged, then you have 14 days to get the Skeleton Argument done, which is also key, but 2 weeks is a long time.

 

After that, it could take weeks/months to get to Appeal, and in that time you and Fred may be able to find the money for a Barrister who will take it over and take the battle back to them. If you win, you will get the original Judgment overturned, and you should get back all of the Costs, both for the Appeal, and also for the original Hearing.

 

A Barrister can later tweak your Appellant's Notice and your Skeleton, so your main aim is to get them in and good enough to get permission to Appeal (assuming you need permission, if the Appeal was not refused at the Hearing, then you may not need to ask for permission to Appeal and can just go ahead and submit the Appeal)...the Barrister can make the paperwork better later if you end up being able to afford a Barrister down the line.

 

Best of luck with this.

 

Cheers,

BRW

[gramtrad2]

Hi again, Folks.

 

My appeal went in, eventually, and has been quickly knocked back by the Appeal Court. Please see appended Notification of decision.

 

The Courts reason for not alllowing the appeal to proceed appears to be based on the time line. The QC who made the decision to refuse the appeal argues that assigment/ sale of the debt in the interim, prior to the termination made no difference. And, he adds, the default notice was valid.

 

(The default notice, from MBNA, which was dated the 8th May 2009 gave me until 25th May 2009 to remedy the breach; the debt was assigned and sold to CL Finance on 21st May 2009).

 

So far the thrust of arguments and opinion on this site has been that since the debt was assigned prior to the 25th May, then the debt must have been terminated prior to that, and therefore did not give me sufficient time to remedy the breach.

 

So, in a nutshell, the QC is saying - yes it is fine to assign prior to termination.

 

I am told that I have the right to have the decision reconsidered at an oral hearing (possibly in front of the first old duffer who made the original decision!).

 

Any views / comments please?

Notice of decision of court of Appeal 2 Aug 2010.pdf

[humbleman]

Hi again, Folks.

 

 

 

So far the thrust of arguments and opinion on this site has been that since the debt was assigned prior to the 25th May, then the debt must have been terminated prior to that, and therefore did not give me sufficient time to remedy the breach.

 

So, in a nutshell, the QC is saying - yes it is fine to assign prior to termination.

 

 

Any views / comments please?

 

Nothing wrong in an assignment at whatever stage unless the assingnee is asking for full payment prior to date to remedy the default.

[someone_else]

How can the Default Notice be dated 8th May and served on the 8th May - the appeals Judge has surely got that wrong unless it was hand delivered that day.

 

Further the letter you got with the Default Notice on page 2 (dated april 2009) states when the default is registered on your credit file the account will be sold and the third party will ask for the full balance.

 

When you sent a SAR to MBNA did you get a copy of the comms log, as normally they put an entry in there claiming a default notice has been issued however all the ones I've seen have the note recorded a few days later showing that DN are normally not sent the day they are printed.

 

Also do you have a copy of your credit file as that will show when the account was defaulted and terminated, and according to ICO guidelines defaults should only be registered after you have been given a chance to remedy the breach (i.e. after the 14 day period is up).

 

No idea if you'll be able to use these in an appeal though?

[gramtrad2]

Nothing wrong in an assignment at whatever stage unless the assingnee is asking for full payment prior to date to remedy the default.

Many thanks for your comments.

 

I confirm that CL Finance did not ask for payment prior to the 25th May 2009.

 

If you are correct then, it looks as though I have been wasting my time fighting this.

 

Up until now the assumption, throughout, has been that since the debt was sold on (and assigned) prior to the date of 25th May, then the Agreement must have been terminated prior to sale/assignment, and as a result, I was not given enough time to rectify the default.

 

Looks like I am jiggered and will have to let this matter go.

 

Any suggestions from anyone please?

[gramtrad2]

someone_else said:

How can the Default Notice be dated 8th May and served on the 8th May - the appeals Judge has surely got that wrong unless it was hand delivered that day.

 

Further the letter you got with the Default Notice on page 2 (dated april 2009) states when the default is registered on your credit file the account will be sold and the third party will ask for the full balance.

 

When you sent a SAR to MBNA did you get a copy of the comms log, as normally they put an entry in there claiming a default notice has been issued however all the ones I've seen have the note recorded a few days later showing that DN are normally not sent the day they are printed.

 

Also do you have a copy of your credit file as that will show when the account was defaulted and terminated, and according to ICO guidelines defaults should only be registered after you have been given a chance to remedy the breach (i.e. after the 14 day period is up).

 

No idea if you'll be able to use these in an appeal though?

 

Thanks for your comments.

 

The issue is that the Judge is saying that termination after assignment is OK. Humbleman, above, agrees with that stance and it looks, very much as though he is correct and that I shall have to let this one go.

 

The consequences of me letting it go will almost certainly mean that CL Finance will now go for a charge on my house; I will then have another battle to fight.

 

If anyone can put forward any reasons for continuing to pursue the appeal in the light of the judge's comments, I should be grateful.

 

update:

I went to Court  - challenging the right of CL Finance to take action against me in the light of an invalid assignment 

 

The judge and the old boys network prevailed and I lost the case in spite of apparent High Court rulings!

 

So, I am now wary about the system if the case cannot be set on a firm footing!