JCV facing Court Action mentioning Carey

[jcv_uk]

Thanks for the advice. I don't have a court date yet but have to complete the AQ. If it does get to a hearing, which I think is likely then I suppose it will be down to the DJ in the end. However I am still concerned about this matter of them wishing to add interest after judgement at 16%, plus 8% under section 69, and then using as proof the Director General of Fair Trading vs First National Bank. I am no legal expert but having looked at this I can't see where they are coming from on this.

[emandcole]

Thanks for the advice. I don't have a court date yet but have to complete the AQ. If it does get to a hearing, which I think is likely then I suppose it will be down to the DJ in the end. However I am still concerned about this matter of them wishing to add interest after judgement at 16%, plus 8% under section 69, and then using as proof the Director General of Fair Trading vs First National Bank. I am no legal expert but having looked at this I can't see where they are coming from on this.

 

Think its likely it will run full course so important they don't railroad you with loosely related case law and a partially uninformed judge. If they haven't contractually reserved post judgment interest they cannot apply for it. (I didn't look for that in the T&C's you provided).

 

Didn't think they could get section 69 interest either on a loan of this type but they always put in for it.

 

Did they charge you at any point for being late in paying for example? Didn't see any signs on the T&C's that allowed them to do that.

[emandcole]

Apologies for multiple posts, just gone back and had a look at the T&C's. No contractual right to apply post judgment interest at all. No charge tariff for any late payments just in case they have applied any.

 

Have you had a default notice for this and if so has it been posted up for us to check over? Would also question the T&C's provided as they appear to have no visible link to the agreement, page numbers etc.

[emandcole]

However I am still concerned about this matter of them wishing to add interest after judgement at 16%, plus 8% under section 69, and then using as proof the Director General of Fair Trading vs First National Bank.

 

Just reviewed this case and yes they have a point but as is quite common they're being very selective about which part they choose to look at and rely upon. Categorically no-one can just introduce terms into an executed agreement/contract or it makes a mockery of the arrangement we have both agreed to. Example - we agree to something, write it all up and then both sign so its executed or 'live'.

 

I can't a year later turn round and say "You agreed to give me a thousand pounds if I wore this T-Shirt today" whilst pointing at the contract that doesn't include that particularly daft clause. Based on the T&C's you have added that they have provided they have no contractual right to secure what they've asked for.

 

As for the case they've quoted an excerpt follows:

 

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3. The bank's stipulation that interest shall be charged until payment after as well as before any judgment, such obligation to be independent of and not to merge with the judgment, is readily explicable. At any rate since In re Sneyd; Ex p Fewings (1883) 25 Ch D 338, not challenged but accepted without demur by the House of Lords in Economic Life Assurance Society v Usborne [1902] AC 147, the understanding of lawyers in England has been as accurately summarised by the Court of Appeal at p 682 of the judgment under appeal:

 

• "It is trite law in England that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum."
  

4. To ensure that they were able to recover not only the full sum of principal outstanding but also any interest accruing on that sum after judgment as well as before, it became the practice for lenders to include in their credit agreements a term to the effect of the term here in issue. If such a provision had not been included, a lender seeking to enforce a loan agreement against a borrower in the High Court would suffer prejudice only to the extent that the statutory rate of interest on judgment debts at the material time is lower than the contractual interest rate, because the High Court has, since 1838, had power to award statutory interest on a judgment debt until payment.

 

 

5. But a lender seeking to enforce a regulated credit agreement is in a different position. He is obliged by section 141 of the 1974 Act to sue in the county court. Until the Lord Chancellor, exercising his power under section 74 of the County Courts Act 1984, made the County Courts (Interest on Judgment Debts) Order 1991 (SI 1991/1184), the county court lacked power to award statutory interest on any judgment debt and, when such a general power was conferred by the order, judgments given in proceedings to recover money due under agreements regulated by the 1974 Act were expressly excluded from its scope. It was further provided in the order:

 

• "3 Where under the terms of the relevant judgment payment of a judgment debt -
  

 

• 
  
  • (a) is not required to be made until a specified date, or
    

   

 

• 
  
  • (b) is to be made by instalments,
    

   

 

• interest shall not accrue under this Order -
  

 

• 
  
  • 
    
    • (i) until that date, or
      

     

   

 

• 
  
  • 
    
    • (ii) on the amount of any instalment, until it falls due,
      

     

   

 

• as the case may be."
  

6. Thus a lender under a regulated credit agreement who obtains judgment against a defaulting borrower in the county court will be entitled to recover the principal outstanding at the date of judgment and interest accrued up to that date but will not be entitled to an order for statutory interest after that date, and even if the court had power to award statutory post-judgment interest it could not do so, in any case where an instalment order had been made, unless there had been a default in the due payment of any instalment.

 

 

 

The lender may recover post-judgment interest only if he has the benefit of an independent covenant by the borrower entitling him to recover such interest. There is nothing to preclude inclusion of such a covenant in a regulated credit agreement, unless it falls foul of the fairness requirement in the regulations.

 

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It seems to me that yes, the above case would support their application but only in conjunction with having contractually reserved that right in the first place...and from the T&C's provided they make no mention of post judgment interest and therefore are denied those sums.

 

There are considerable differences here also, the above case relating to powers of the high court to award stat interest where your case is of course in the lower courts. Basically they are trying it on.

[jcv_uk]

Apologies for multiple posts, just gone back and had a look at the T&C's. No contractual right to apply post judgment interest at all. No charge tariff for any late payments just in case they have applied any.

 

Have you had a default notice for this and if so has it been posted up for us to check over? Would also question the T&C's provided as they appear to have no visible link to the agreement, page numbers etc.

 

Looking at the agreement I actually thought they could charge interest after judgement "Failure to pay on time - We have the right to charge interest at the APR shown on all overdue amounts ..........This will be calculated on a daily basis from the date the amount became due until it is received and will remain before and after any judgement"

 

With reference to the default notice, no I have never ever had one, even though the POC refers to one, and when I made a CPR 31 request they denied having to provide one because the contract has expired.

 

I have never had any charges or interest applied for late payment on this account, I do have an up to date statement and no charges have ever been added.

 

What I do have though is the attached letter which clearly shows that they would freeze interest and charges as long as regular payment are met, and they have been, every month with never a miss. This letter was sent to me two years ago.

2010074.pdf

[emandcole]

Looking at the agreement I actually thought they could charge interest after judgement "Failure to pay on time - We have the right to charge interest at the APR shown on all overdue amounts ..........This will be calculated on a daily basis from the date the amount became due until it is received and will remain before and after any judgement"

To me that reads as them being entitled to add interest at the specified rate of 16% on all overdue amounts. They will calculate that daily from when it is late up until payment is received and such amounts owed will still be owed regardless of any judgement.

 

It seems they are simply securing outstanding amounts but not certain if what they've written is clear enough or not. Reckon its quite ambiguous and certainly worth challenging.

 

With reference to the default notice, no I have never ever had one, even though the POC refers to one, and when I made a CPR 31 request they denied having to provide one because the contract has expired.

 

Nonsense, they must provide one under a regulated agreement. Even their own T&C's confimr a default notice will be issued. This is great and likely to be your strongest point of dispute which could prove fatal for them.

 

As they've mentioned it in their PofC how can they now try to avoid providing it? I suspect they didn't issue one, if thats the case now that the contract is terminated they are only lawfully owed the arrears as listed on the (potentially non existant default notice) or as owed before the termination.

 

You need to see this default notice as a matter of urgency, if one was never issued their claim is finished as they cannot now issue another. You need to issue a CPR request for the production of this document, the court will expect to examine it as well so there is no real way of them getting round this.

 

As the claim has been started but not yet allocated you need to send the following letter off asap. Adjust it to suit your situation and as always send recorded, print off the proof they've received it once they've signed for it.

 

If they fail to respond to this you then send the 31.15 (come ask for this if/when needed) which will then allow you to seek an order forcing them to comply. If they don't have the notice quite simply there is no case to answer and you'd have every right to counterclaim for unlawful repudiation of contract.

 

Finally, have you checked your credit file to see if they've registered a default against you? Do this quickly if you haven't, you can get it free if you sign up for a trial but cancel it after you've printed off the bits you need. There are three main agencies so you might have to check them all to see which agency was used.

 

--------------------------------------------------------------------

 

Dear Sir,

 

Re : INSERT CLAIM NUMBER

 

THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES.

PLEASE DO NOT IGNORE.

 

I am in receipt of your letter dated £££££, this was received on £££££

 

CPR 31.14 Request. I hereby require you to provide copies of the following documentation and trust this request will be complied with as a matter of urgency.

 

[1] A true copy of the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed and terms and conditions as varied.

[2] A true copy of the default notice as mentioned in your particulars of claim along with proof of postage.

[3] Any further or subsequent notices, information, terms and conditions relied upon.

 

A copy of the documents I have requested should be supplied to me within 14 days. If they are not provided I will make further request for inspection under CPR 31.15 before making application to the court for an order of compliance and that further proceedings upon the claim be stayed pending provision of the requisite documents.

In support of this I will refer to this and any other requests for the provision of copy documents.

 

I look forward to hearing from you within the time stated.

 

Yours faithfully,

 

 

I have never had any charges or interest applied for late payment on this account, I do have an up to date statement and no charges have ever been added.

 

Good.

 

What I do have though is the attached letter which clearly shows that they would freeze interest and charges as long as regular payment are met, and they have been, every month with never a miss. This letter was sent to me two years ago.

Useful perhaps but concentrate on the CPR stuff, that default notice could be your golden opportunity.

[jcv_uk]

Thanks for this, I will send the letter today but the problem is that the AQ has to be in at the Court on Monday. I can take that in personally so have until Monday to complete it. So if I send in the AQ do I need to add anything about the CPR request, failure to supply the default notice etc?

[emandcole]

Thanks for this, I will send the letter today but the problem is that the AQ has to be in at the Court on Monday. I can take that in personally so have until Monday to complete it. So if I send in the AQ do I need to add anything about the CPR request, failure to supply the default notice etc?

 

Appreciate its tight but get the letter off first, that way you sent it correctly so no probs. Also, until such time as you hear from the court about the track it has been assigned to the 31.14 and 31.15 are entirely appropriate.

 

The court will take some time to process the AQ and get back to you anyway, chances are if you're on the ball you'll have been able to get the 31.14 sent, waited for them to fail and then sent the 31.15 giving them 7 days to make the docs available to you for inspection.

 

Make sure on the AQ that you make it perfectly clear that the claimant is frustrating matters for you having not provided the documentation mentioned in their particulars of claim. This is essential stuff and the claimant should have made copies available to you after your original requests.

 

Was this claim filed through Northampton bulk centre? If not the claimant should have attached copies of all documents mentioned in their PofC with the original claim form you first received.

[jcv_uk]

The claim was not sent through the Northampton Bulk Processing Centre, it was sent from a local county court and has now been transferred to my local court. When the court claim was sent to me it inlcuded a copy of the front of the agreement and not the reverse, a copy of the deed of assignment of the debt and a full statement of account and NO default notice. After my original CPR 31.14 request they sent me a photocopy of the alledged reverse of the agreement, a further statement but still no Default Notce.

 

Looking at your advice you suggested I send a CRP 31.14 request, however I had already done that and I did get a response, almost by return and as I said they sent a photocopy of the signed agreement, a photocopy of the reverse and a statement but they said they were not required to provide me a copy of the defult notice. I guess therefore that i should follow up with the cpr 31.15 request now.

[jcv_uk]

Finally, have you checked your credit file to see if they've registered a default against you? Do this quickly if you haven't, you can get it free if you sign up for a trial but cancel it after you've printed off the bits you need. There are three main agencies so you might have to check them all to see which agency was used.

 

Actually there is no record of this debt on my credit file, I do keep a regular check on this because I am having trouble with another creditor over something on my credit file (but thats another story).

 

Something I have noticed, but it is not really significant in the context of a possible CCJ is that I know from a letter I received from this creditor last year, and experian, that they made an enquiry against my credit file with experian, at the time they were checking against my financial statement I had sent them to see what my credit file said I was paying my creditors and what I owed them. However looking at the copy agreement they sent me there is no authorisation for them to check with a credit reference agency, only that they can supply information to an agency.

[diddydicky]

So DJ's failing to recognise this are clogging up the justice system further

because people are appealing against incorrect judgements. Was the

whole idea of Carey to give the situtation more clarity, maybe it might be

an idea to stick Mr. Waksman Telephone number so the DJ can clarify

the position.

 

the carey judgement concerned s78 requests

 

what is needed is an appeal against one of these decisions which deals solely with the use of reconstructed agreements to support a cause of action

[diddydicky]

it was Liverpool Victoria but they sold it one to another company, which I would rather not name as they have already accused me of compiling a defence from an internet forum

 

it is not "an offence" to compile a defence from an internet site

 

if the internet is the place which you can afford to get legal advice then that is perfectly legitimate

 

what is dispicable- is a creditor- knowing that you cannot afford legal advice "snooping" on sites in which they are well aware people are seeking to obtain assistance with their case

 

the "good news" is that any creditor or dca that has to resort to this activity - in all probability is unsure of his ground

[emandcole]

The claim was not sent through the Northampton Bulk Processing Centre, it was sent from a local county court and has now been transferred to my local court. When the court claim was sent to me it inlcuded a copy of the front of the agreement and not the reverse, a copy of the deed of assignment of the debt and a full statement of account and NO default notice. After my original CPR 31.14 request they sent me a photocopy of the alledged reverse of the agreement, a further statement but still no Default Notce.

 

Looking at your advice you suggested I send a CRP 31.14 request, however I had already done that and I did get a response, almost by return and as I said they sent a photocopy of the signed agreement, a photocopy of the reverse and a statement but they said they were not required to provide me a copy of the defult notice. I guess therefore that i should follow up with the cpr 31.15 request now.

 

One question - have AQ's been completed yet and has a track officially been assigned to this case?

 

Yes you should issue the 31.15 for inspection of the documents, specifically stating you wish to view the agreement and governing terms and conditions, the default notice, the notice of assignment and vitally the actual deed of assignment. As for the agreement they've sent they need to show how it was linked to the T&C's they rely on.

 

If they cannot and they can't produce the originals in court you should ensure your defence points out that such reproductions are no more than hearsay evidence which allows you to then use the civil evidence act to make life really hard for them, more on that if the time arises.

 

They will moan about letting you see the deed of assignment (especially if they don't have it ) but you have a right to inspect this (case law supports this which we'll introduce if needed) or at least to demand the court inspects it on your behalf at the very least. As for the default notice that's interesting, they have a certain amount of time to register a default notice and this is typically accepted as 3 months.

 

If your credit files (have you checked all 3 agencies?) do not show the DN being registered and they cannot produce a DN along with proof of service (to make sure they've not just made one up last week to suit) then they'll be in difficulty.

 

Get the 31.15 straight off but be prepared to act if and when they fail to comply. You'll need to make an application to the court ordering them to comply, again more on that if needed later on.

[diddydicky]

if they have at any time informed you that they do not have a copy of the DN- then you will simply be piling up costs for yourself in seeking to demand that they produce that which they have already admitted they do not have!!

 

very few, if any creditors- keep hard copies of DN's

 

if you have the original DN and they don't have a copy- then yours clearly will be accepted as the genuine DN

[jcv_uk]

After a long silence and nothing in response from the Claimant about my CPR request I have now had a letter from the Court. They have made a judgement without a hearing that this case should be dealt with by mediation which is a free service offered by the Court. The judgement goes on to say that if both parties do not agree to mediation or mediation fails then a hearing will be arranged at a time and date to be notified. If a hearing is called then both parties must supply to the court and each other all documents and they will rely on at the hearing, but the best bit is that the DJ has ordered that only original documents will be acceptable at the hearing.

 

I doubt the claimants have the original agreement or default notice.

 

I will let you know how the mediation goes.

[paulwlton]

After a long silence and nothing in response from the Claimant about my CPR request I have now had a letter from the Court. They have made a judgement without a hearing that this case should be dealt with by mediation which is a free service offered by the Court. The judgement goes on to say that if both parties do not agree to mediation or mediation fails then a hearing will be arranged at a time and date to be notified. If a hearing is called then both parties must supply to the court and each other all documents and they will rely on at the hearing, but the best bit is that the DJ has ordered that only original documents will be acceptable at the hearing.

 

I doubt the claimants have the original agreement or default notice.

 

I will let you know how the mediation goes.

 

A judge that's on the ball at last.

[emandcole]

Excellent - a very positive decision by the judge, good to read.

[jcv_uk]

The creditor refused to go to mediation and so the court set a date for the hearing. The DJ stipulated that all parties should send copies of all documents to be relied on in court both to the court and each other. I have sent my papers but the creditor has now failed to send me any papers and there is now less than fourteen days before the hearing. this puts me at a disadvantage.

 

Am I now entitled to write to the court asking for the case to be struck out as the creditor has:

a) failed to send me documentation they will use in court

b) failed to comply with my CPR request to make available the original default notice and agreement (the DJ has stipulated that all originals must be brought to the hearing)

[emandcole]

Hi, do you have any directions from the court after the mediation failed? If so can you state what they were...

[blueotter]

Any updates jcv ? Glad to see you've been getting very helpful advice,i've only just returned from hospital and its taking a while getting myself upto speed especially as i've about 30 dca letters to wade through !

[jcv_uk]

Hi

Been away so not had chance to update you. The directions were quite simple.

1. Each party shall deliver to every other party and to the court copies of all documents which will be relied upon ion the hearing, no later than 14 days before the hearing

2. The original documents shall be brought to the hearing

 

I did contact the court to say I had not had any papers from the Claimant, however they checked their own records and they had received papaers, then the day after I received papers, albeit less than 14 days but they had been posted five days prior and should really have arrived earlier.

 

But the papers that the claimants have sent me include a statement which says they will not be producing any original documents as they were destroyed some time ago, it then goes on to say that they are under no obligation to produce original documents (again quoting Carey). It would appear therefore that they intend to challenge the DJ on his direction to produce originals.

[Notasniceasjoe]

Hi JCV

 

I'm in a somewhat similar position to yourself.

 

After a SJ hearing, which was unsuccessful for the claimant, the DJ made an order requiring exchange of all documents to be relied up and witness statements to be relied upon, so I produced a bundle with copies of everything in.

 

The Claimant's solicitors have since produced a WS in which they state that they are under no legal obligation to retain the original documents, lots of stuff stating that at no time has a credit card ever been issued without being attached to an executed form of the credit agreement, aka the Card Carrier and essentially that they intend to continue with a True Copy of the original document, as retrieved from their microfiche system.

 

The only documents that they have produced in accordance with the DJ's order is another photocopy of the application form, another copy of the terms and conditions and a copy of the first statement of account. With their amended PoC they had also produced a copy of the defective default notice, that I had submitted in my WS for the SJ hearing, claiming it as a recreated copy of a default notice, which it wasn't.

 

I guess what I'm saying is to not count on it to be "Game Over" if the Claimant fails to produce the original documents to the court. There is a lot of discussion about what constitutes a True Copy of the original documents and whether such is equivalent to an original. To the layman it would seem that "an original is an original", but apparently that is not necessarily the case.

 

It seems to me that claimants are playing fast and loose and running rough-shod through the regulations regarding documentation and are mostly getting away with it.

[cups]

Hi JCV

 

I am up with this lot,,they have sent me true copies and now reconstructions,,they keep making things up,

 

Cups

[Docman]

jcv

 

When was the loan taken out with Liverpool Vic? Was the loan with the Liverpool Victoria Society itself or a limited company owned by LV?

[jcv_uk]

The original agreement was with Frizzell Bank but this company was bought out by LV.