Just been to court/CL finance**WON IN COURT**

[bluetack]

Hi all,

 

I've had little sleep all weekend as I was due in court this morning at 10.00 with CL finance.

 

The backround is: in 2006 they bought a debt from RBS for £8,500 and have been chasing me hard with all the usual threats. I did not have any paperwork for the RBS debt as we tried to include it in my husbands bankruptcy in feb 2005 (it was a joint credit card) and the official receiver has all the relevant paperwork. The whole debt was obviously transferred to me.

 

I received a notice of assignment from RBS & CL Finance.

I asked CL Finance for a copy of the credit agreement and statements of account.

 

They sent me a 'copy' of a RBS credit card application (a very bad copy) but no statements. They asked me to withdraw my defence from court but I refused.

Anyway, went to court this morning for an allocation hearing ( I was shaking in my shoes as I knew I was on dodgy ground)!!!

 

Guess what? CL Finance didn't show up!

The judge was not very happy. He asked me if I had received any paperwork from CL Finance and I showed him the Credit card application copy they had sent me. He seemed to think it was acceptable and asked me how I was going to clear the debt!!

 

I explained that this was just a copy of a credit card application, not an agreement, with no APR; NO SIGNATURE, other than myself and my husband, no agreed limit etc. etc.

 

He then said he would ask CL Finance to send me all statements on the account. If they failed to provide them within two weeks the case would be struck out. He said they can apply for a time extension to supply the statements.

I couldn't wait to get out of court but I should have asked what 'STRUCK OUT' means.

 

Can these people take me to court again if this case is struck out, does anyone know what happens if they cannot produce the statements??

 

Thanks everyone for reading, I hope someone has some advice!

[tooth_fairy]

Struck out I think means it will be discontinued and they would be unable to bring any further action against you.

 

They will have 14 + 2 days to send you the paperwork, I think you'd need to inform the court in writing if you didn't receive them by that deadline and they in addition could ask for an extension.

 

Judges seen very ignorant about DCA's/CCA's so it may be worth your while when you get the next court date, to take along some literature from the CCA.

[bluetack]

Thanks Tooth Fairy, you are right, the judge seemed uninterested in the credit agreement, as if it didn't really matter as far as the debt was concerned.

 

CL Finance did me a favour by not turning up, I just hope they cannot produce the statements!

[tooth_fairy]

Did you see a copy of their affidavit before going to court, can I ask? Did they have a CCA in that?

[bluetack]

No, I didn't receive any paperwork from them at all, I don't think the court did either.

[tooth_fairy]

They should have provided you with a 'Witness Statement' of someone from their company, stating they have a CCA, they are acting on behalf of the creditor and the reasons why you owe the debt and they should have the CCA.

 

If you don't have that you can insist on an adjournment until the paperwork is provided, alternatively, you can ask the judge to ask the court staff to make copies for you and ask for a break to consider their evidence, if you feel you need more time, ask for an adjournment.

 

Hopefully now, you will be allocated a new court date, which may be 4-5 weeks in the future, if, 10 days before the court date, you have not received the paper work, write to Judge and the court (sometimes the judges are on a 'circut' and you may not see the same judge again and the court also needs to be aware of any default of the creditors actions), tell them you have not received it and refer to the judges intentions to strike out the case at this point, say in the interests of the costs of both parties and failure of the DCA to comply with a legal request, the case should be thrown out.

 

Make sure though,. if this happens you get court documentation to say this and you also ask the judge to make a ruling so that they are unable to claim any further.

[gymfreak1978]

Its bad news the judge accepted the application form over an actual CCA.

 

hope and prey these sharks dont come up with the statements, fingers crossed for you.

[Boobaby]

Its bad news the judge accepted the application form over an actual CCA.

 

hope and prey these sharks dont come up with the statements, fingers crossed for you.

 

 

Was this ironic spelling mistake intended?

[storm]

Don't think the court can enforce it without a signed agreement anyway. This is somewhere in the CCA act and also I would have thought you can referred to the famous Wilson case.

 

I'm in court tomorrow with this lot, and they have provided statements but not an agreement.

 

Will bring my thread to the top for you

[bluetack]

Thank you tooth fairy, gymfreak, boobaby & storm. Really appreciate all of your advice plus it can be a lonely feeling when 'everyone' here is with you but not actually 'with' you in court! (shame we can't all go together)

 

I have been following all the rules (wouldn't have known them if it wasn't for this site, all stand up and shout thank god) but when you get in front of the judge and start talking about CCA's etc; he looks at you as if you are from another planet!!

 

It doesn't seem to matter that the other party couldn't be bothered to turn up or provide affidavit.

 

If CL Finance fail to provide statements I will insist this case is struck out and i'll go for costs.

Good luck against these idiots storm, keep posting!

[Boobaby]

Thank you tooth fairy, gymfreak, boobaby & storm. Really appreciate all of your advice plus it can be a lonely feeling when 'everyone' here is with you but not actually 'with' you in court! (shame we can't all go together)

 

I have been following all the rules (wouldn't have known them if it wasn't for this site, all stand up and shout thank god) but when you get in front of the judge and start talking about CCA's etc; he looks at you as if you are from another planet!!

 

It doesn't seem to matter that the other party couldn't be bothered to turn up or provide affidavit.

 

If CL Finance fail to provide statements I will insist this case is struck out and i'll go for costs.

Good luck against these idiots storm, keep posting!

 

You can ask if there's a buddy on this site, living close to the Court who is willing to attand with you!

Good luck and I know what you mean about wanting everyone to go with you it kind of feels like the Unison advert with the ants etc...

 

Boo x

[storm]

Top, I too had the same thing, although I won my case anyway, see my thread 'not having a cca is no defence'

[bluetack]

So glad you won Storm, but it seems you would have had the same problem as me, had they actually turned up in court that is!

 

I think some of the cases on this site (including mine) are hanging by a thread, some winning (you for example) by default/chance.

 

Is that the end of this one for you or can they come back at some point, what about your credit file, any nasties from CL Finance?

 

Well done!

Blue

[Guest Mincemeat]

Just subscribing. I've got issues with CL Finance on my OH store card. They bought the debt in December (13th), filed a default ON THE SAME DAY. No default notice supplied by GE Finance either. Then, they filed on 19th Dec. No letter on assignation of debt from either party. I filed a s78 and a SAR on the 27th Dec, which they 'complied' with late. Am about to file an N1 for non-compliance of the SAR. They provided a copy of the agreement, but absolutely illegible and did not complete the other parts of the s78 request (balance, other documents). I got a stay put on the claim following my submission of defence, but this was (incorrectly) lifted. I even had conversations with the head of the group of companies (a Dr somebody) and will end up in court soon. The agreement they sent me is probably a fake and is illegible in the most half. It also has the wrong date on the T&C's listed with the account, so something is not quite right. Also, the agreement makes comment to a direct debit mandate being required, but they haven't provided that either (for obvious reasons). I have bundles and bundles of stuff to quote: breaches of the DPA, breaches of the CCA, breaches of the CPR... the list goes on and on. If it isn't thrown out of court I will have sooo many grounds for appeal that this will go on, and on and on and ariston. Oh, and they messed up the interest calculation on the N1 and as there are charges I want refunded and s85, they have incorrectly stated the value and therefore it is unlawful, and they've been in default since 1997 so can I have £30 a month back for the last 10 years please, with interest compounded at 8%

 

(Apologies for hijacking the thread here! )

[payingonlyencouragesthem]

I will have sooo many grounds for appeal that this will go on, and on and on and ariston. LOL:grin:

 

Mince forgive the ignorance how does one "appeal" a CCJ. I always thought there was no appeal in the CC's. Would you request that the judgment be set aside on the grounds that it was based on faulty legal reasoning?

[Guest Mincemeat]

The judge can give you leave for appeal, other than that I'm not sure what you mean? Of course you can appeal a CCJ, but only if you contested it at the time. You can get a set aside if you believe something was missing. It depends on the case and your circumstances

[NitrousOxide]

Hi,

I was led to believe that to appeal a civil case of any type they have to be based on points of law.

The CCA is a point of law.

The consumer contracts act is a point of law.

Do your homework and you should be able to appeal.

If any learned friends would like to add or correct me I'd be grateful, as I'm only going on what I've been told in court before.

[bluetack]

Damn & blast!!! the courts don't play fair.

 

Had a letter from the court dated 21st May saying unless CL Finance provided statements by 28th May the claim would be struck out.

Rang court today (30th May) fully expecting a positive result, but apparently they received a bundle of statements in this mornings post and the case would be relisted for directions. Not fair, dont't time limits mean anything??

[tooth_fairy]

It doesn't seem so, I had this and the court believed the argument from the creditor about bank holiday post

[rory32]

Stick to the CCA argument bluetack. The statements without it are not sufficient.

 

You may want to PM a moderator if you are having difficulty with your defence. Remember judges are often not very well up on consumer law and need to be informed by you as the defendant.

 

Failing PMing a moderator I know tomterm8 has successfully defended a similar case.

[rory32]

You may also wish to look at the case of Wilson and others v. Secretary of State for Trade and Industry.

[rory32]

Forgot to say bluetac, the crux of your defence should be s127(3) of The Consumer Credit Act 1974.

[bluetack]

Thanks for your reply but I tried the bit about the CCA in court the first time. The judge pointed out that statements would prove the debt was mine. I think I may get in over my debth if I try to argue this point when the statements are there in black and white.

I have asked the court to send copies of the statements so I can see charges etc; Do you think I should try to get the amount reduced by these?

I am getting really confused as I have also taken on Barclays & Lloyds for my Son (Barclays/Lowells being really difficult, Lloyds ignoring every letter) and I'm dealing with Nationwide for bank charges. Also being stung every month by GE Money on mortgage/ arrears charges.

 

Everyone is so helpful here, but I think I may have taken on too much at once!!

[rory32]

You do understand the case I quoted you is a House of Lords ruling? You do understand that this sets a precedent that a County Court can not ignore? You have read what s127(3) says haven't you?

 

PART IX

JUDICIAL CONTROL

s127 (3)

The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

The judge may not be aware of the statute on this matter but once pointed out he can not ignore it.

[bluetack]

Yes, I think I do understand, but maybe I have got it wrong.

I was sent a bad copy of a credit card application which I had signed.

No credit amount was mentioned or APR; but it does say in a little box that this is a credit agreement and I have a cooling off period.

 

From reading other threads most people seem to get the same thing. The judge I had just wasn't interested in what I had to say about the legality of the CCA.