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Phoenix Recoveries vs D Kotecha - Court of Appeal


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Perhaps I worded it wrongly pt, (and thanks for the reference by the way) but I was getting at:

 

What happens after the said judgement? It seems to be being suggested by eminent posters that should the creditor lose in that judgement then he can keep going back to court time after time over the same debt with amended details to suit the previous judgement UNTIL he gets what he wants from the courts.

 

That surely cannot be the case, I am fully aware of the specifics with regard to s78 but the discussion following the post I highlighted adds another dimension, like win in the Suprem court and they can still come back with another load of hogwash and the whole thing starts again. Not highly likely I know but the eminent posters are most defintiely suggesting that scenario.

 

regards

oilyrag

 

See posts 144 onwards above. PT mentioned Henderson and Henderson which i linked to the details in 146.

 

M1

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yep trying to get head around your references M1 and tie up pt's comments with henderson etc. perhaps I was hoping for too much to get a straight answer.

 

regards

oilyrag.

From the link in 146.

 

"Sir James Wigram VC said: “In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

 

Therefore you have a defence if they try again after losing.

 

They lose the original case because of section 78. They try again after curing the breach of section 78. You scream "res Judicata" at the court. They lose again.

 

I don't know what else to tell you.

 

M1

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No judgement was made on the debt, the judgement was on the matter of enforceability due to the breach Unenforceability only exists for as long as the breach does.

 

Peter

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HI

Paul may I ask. Was this the only line of defence on the original hearing, If the T and cs where incorrect did your firm try for unenforceability under section 127(3) or (1) if after 2007?

This would have been a more permanent result I think.

Must admit this is the reason I brought up the Wakesman judgement earlier, I half expected you to say that the 127 plea had been rejected and you fell back on the section78 breach.

Peter

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No judgement was made on the debt, the judgement was on the matter of enforceability due to the breach Unenforceability only exists for as long as the breach does.

 

Peter

 

The claim will still be the same even if the defence of section 78 no longer exists.

 

In this case Phoenix made a claim for £x based on agreement yyy.

 

Kotecha defended the claim and the claim was dismissed. What more does a defendant need to win than have the case dismissed with costs ?

 

The basis of a 2nd claim is the same as the first. i.e. claim for £x based on agreement yyy.

 

M1

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Hi

 

It is the enforcement that is in question not the default judgement. The creditor can re file i am affraid, no queston.

 

 

Peter

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Thanks M1 I can now see exactly where you are coming from and from the additional reading I agree entirely with what you have said. I think you can see what I was trying to clarify after these last few posts.

 

regards

oilyrag

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lol

we were not involved at the lower court.

 

However, the CoA did point out that Johnson v Gorewood would be an insurmountable problem for a Claimant who botches his claim

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Is there anything legally clear on what "enforcement" actually is yet under the CCA?

 

Is obtaining a judgment "enforcement" or enforcing the judgment e.g. sending in the bailiffs, 3rd party debt orders, garnishing wages, etc...

 

I remember reading one of the cases and the Judge was sort of inferring you'd have to go for injunctory relief to stop "enforcement".

 

Does that mean technically they can get a judgment against you without complying with a s77/78 request properly but not "enforce" it?

 

Leaving it up to you to try and get an injunction against them enforcing it if they tried then suddenly have them magically comply with the s77/s78 request.

 

It is seriously important people fully use CPR 31 the day they get the claim form and go all out to kill the claim before they even have to file a defence. Sadly Joe Public has no clue about this.

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Enforcement

 

That is a good question

 

Steps within s87 can constitute enforcement ( see McGuffiuck)

 

Recovery of goods is enforcement

 

Obtaining a judgment which enforces the debt, is enforcement ( Rankine v Amex)

 

but bringing a claim is a step towards enforcement not enforcement itself

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Enforcement

 

That is a good question

 

Steps within s87 can constitute enforcement ( see McGuffiuck)

 

Recovery of goods is enforcement

 

Obtaining a judgment which enforces the debt, is enforcement ( Rankine v Amex)

 

but bringing a claim is a step towards enforcement not enforcement itself

 

That was confirmed by the judge at my summary judgement on teusday, although they did'nt physically remove the vehicle they still entered my property (without a court order) and immobilised the vehicle,

 

cab

Cab1ne-Lombard-Shoosmiths **Claim Recieved**

http://www.consumeractiongroup.co.uk/forum/showthread.php?181761-Cab1ne-Lombard-Shoosmiths-**Claim-Recieved**/page25

Summary Judgement 01/02/2011 **REFUSED** set for trial "May 23rd To June 30th 2011"

DISCONTINUED 3rd MAY 2011 **WON**

 

santander" Responsible Lending!!!!!!!

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?219431-quot-santander-quot-Responsible-Lending!!!!!!!

 

Capquest "V" Cab1ne

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?262962-Capquest-quot-V-quot-Cab1ne

 

"STAYED"

 

CAB "Sittin Tight"

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Judgement was entered and overturned on appeal.

 

Without res noviter veniens ad notitiam my opinion is no can do.

 

M1

 

This is nort required as the complaint was not thrown out it was just not enforced.

 

Peter

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Are we still talking about Phoenix Recoveries vs D Kotecha - Court of Appeal? Because that wasn’t a default judgment. It was first lost then won at appeal.

 

If not, what is being talked about? I’m lost.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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Enforcement

 

That is a good question

 

Steps within s87 can constitute enforcement ( see McGuffiuck)

 

Recovery of goods is enforcement

 

Obtaining a judgment which enforces the debt, is enforcement ( Rankine v Amex)

 

but bringing a claim is a step towards enforcement not enforcement itself

 

HI

 

Yes absolutely correct.

 

So the case here was not subject to judgement because that would be enforcement.

 

No reason then why the case cant be refiled.

Peter

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

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Are we still talking about Phoenix Recoveries vs D Kotecha - Court of Appeal? Because that wasn’t a default judgment. It was first lost then won at appeal.

 

If not, what is being talked about? I’m lost.

 

I will help you find your way.

I was refering to the claim which brought about by the default of the debtor, not the response to a section 78 request

 

Peter

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Hi

 

Look at my thread on TBI and me, from day 1 l said that l didn't sign a form that they produced and had a good reason to say that,,it didn't have my name and address on it !

 

For over 2 years there was nothing, then 2 weeks before trial they 'reconstruct' what the agreement should have looked like? because there had been an error with the original and my name and address had been ommitted by mistake. They got away with it and have a judgement against me. I did ask in court for a blank copy from which they have 'reconstructed' and they couldn't produce one!

 

Thinking of setting up my own company called 'Making up credit agreement R u!'

 

Cups

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HI

 

Yes absolutely correct.

 

So the case here was not subject to judgement because that would be enforcement.

 

No reason then why the case cant be refiled.

Peter

 

I don't think there is anything legally stopping them. I get the feeling though that they aren't able to even reconstruct the originally agreement

because they don't know what it was anymore to even keep a straight face and say it was a true copy.

 

They have had plenty of time to!

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Hi

 

In my real life, l don't think that l would get away with such flagrant 'fairy telling'. There must be something that can be done, l know some people have had great results with their cases, and l conratulate them but this whole reconstructing agreements out of thin air can not be right.

 

In my case they haven't even got a pre contractual app form, which leads me to believe that they have taken my signature from that an put it on something they had from some time before. I don't say that lightly either, l have thought this from Day One, l didn't just turn up at court and make out l had never signed anything, l was saying it from the start. l also had the fax headers to support me, they had nothing, and still they win?

 

I think what irks me the most is that the CCA was in force all along, so they knew that they might always have to 'produce' these agreements, that must have been a possibility. Their shoddy paper trails are being used against us. I know l am ranting but it is not like they don't know about Data Protection and rules of disclosure.

 

The Judiciary are hell bent, l believe, on assisting these companies with dealing with those that dare to call them to account, l dare say if we all accepted charging orders and the like then there wouldn't be a problem.

 

I am not trying to avoid paying but if l didn't take a stand then they would have taken me to court anyway?

 

Deep Breath now,,

 

Cups

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hi cups

When I lost some of the DJ's comments were at odds with the law. If the financial institutes hadn't been greedy and lazy, cutting corners to trap more people we would not be in this position. I know I took credit but it was without the correct paperwork; I am not saying that I would have declined credit if I had been able to read everything, but I should have had that option.

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Hi

 

In my real life, l don't think that l would get away with such flagrant 'fairy telling'. There must be something that can be done, l know some people have had great results with their cases, and l conratulate them but this whole reconstructing agreements out of thin air can not be right.

 

In my case they haven't even got a pre contractual app form, which leads me to believe that they have taken my signature from that an put it on something they had from some time before. I don't say that lightly either, l have thought this from Day One, l didn't just turn up at court and make out l had never signed anything, l was saying it from the start. l also had the fax headers to support me, they had nothing, and still they win?

 

I think what irks me the most is that the CCA was in force all along, so they knew that they might always have to 'produce' these agreements, that must have been a possibility. Their shoddy paper trails are being used against us. I know l am ranting but it is not like they don't know about Data Protection and rules of disclosure.

 

The Judiciary are hell bent, l believe, on assisting these companies with dealing with those that dare to call them to account, l dare say if we all accepted charging orders and the like then there wouldn't be a problem.

 

I am not trying to avoid paying but if l didn't take a stand then they would have taken me to court anyway?

 

Deep Breath now,,

 

Cups

 

it may well be the case that the creditor "lifted" your signature from some other document and placed it on an application form or agreement- however in a civil court- where the claimant (creditor) has to prove his claim- the onus of proof of an allegation of fraud turns to the person making the allegation- therefore without any evidence to back up the allegation- it would be wise not to make it

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it may well be the case that the creditor "lifted" your signature from some other document and placed it on an application form or agreement- however in a civil court- where the claimant (creditor) has to prove his claim- the onus of proof of an allegation of fraud turns to the person making the allegation- therefore without any evidence to back up the allegation- it would be wise not to make it

 

It is possible to go through all the documents you have ever signed with them and compare them to the one you think it "iffy".

 

I did this and discovered two of my signatures - on a document i had never seen before - matched exactley those on other documents i signed. Once i informed the other side of this " annomoly" and sent them a tracing to overlay and compare they suddenly changed their minds and decided to settle as, " I was obviously unhappy with their service" and as a customer they did not want to see me disapointed. Bless em.

 

And don't forget, if you do find evidence, it becomes a criminal matter.

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IMHO the chances of a major creditor "forging signatures onto documents" is less than the chance of winning the lottery - about 15,000.000 to 1

 

looks like dadofholly as just beat the odds so i would say you were safe to such an event by 14,999.999 to one

 

you should be able to tell easily enough-- there will be a bright star in the East!!

 

 

IMO concentrate on matters that you are likely to be able to prove

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I don't think there is anything legally stopping them. I get the feeling though that they aren't able to even reconstruct the originally agreement

because they don't know what it was anymore to even keep a straight face and say it was a true copy.

 

They have had plenty of time to!

 

Yes as i said earlier(post 97)

 

I think the important issue here is , can the creditor ever enforce without a signed compliant agreement, this was left hanging in there air in Carey, and still i believe needs to be resolved.

 

Peter

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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