un1boy - N1 issued for breach of CCA request

[pt2537]

Cool, cant wait to hear the full details

 

[itsamomentintime]

right behind you un1boy

[redsue]

c'mon uni - how did you get on?

[un1boy]

Hi guys,

 

Sorry for the delay. Let me take it from the beginning (please bear in mind that the following is only a summary of what was said and happened, and not necessarily the exact words/sentences that were used):

 

Before the hearing, the bank's rep came over and was actually really nice - she was telling me how she was a qualified barrister and was self employed, as well as the fact she had been to 3 or 4 different local courts that day.

 

She also explained that she had been instructed the Saturday morning before the hearing on the Monday so had read through all the correspondence and wanted to know how I knew the amount I did.

 

i explained that it was all "self-taught" by reading and researching on the net as well as reading the relevant acts, I also explained that I am going to be studying to become a sol myself, specialisingin consumer and employment law.

 

She explained to me what the hearing would be about and said it's "standard procedure and should only last 5 minutes, if that" She explained that her only instructions were to approve standard directions and that she had prepared a list of them for the Judge. She went through them with me, and I was like - right, that's interesting, we'll see what the judge says.

 

THE HEARING:

 

The judge was again, really really nice. He summarised his understanding of my claim, he wasn't quite there, but was kind of right. he was effectively saying that section 127(1) applied only when the bank had entered legal action, not really before.

 

He then passed over to me - I explained that I felt that the word "enforce" applied to them processing account data (defaults etc) on my creidt file and even to asking me to pay, as per the wilson cases.

 

He replies, saying "Hmmm....so I guess we need to establish the interpretation of enforcement? good."

 

He then asked what the bank's stnace was....the qualified barrister simply said:

 

"Err....Sir, I was simply instructed to approve standard directions"

 

Judge: "well, I have been proactive and obtianed a copy of the act and the case law in order to review the case properly."

 

He went through my POCs, explaining that he wanted each party to know exactly what would be happening. He was great, going through everything I am claiming - saying that if I am claiming for return of monies paid due to paying extra interest on a loan agreement that I would need to provide proof to the court, in the form of rates that were available at the time. He also said things like, "Interest - well, that's a given, court costs - absolutely, if you win...return of monies paid towards the agreement since it was defaulted. Damages -well, I'm not too sure if that would be relevant in this case."

 

He read out the relevant section 78 and section 127 and section 65 etc and asked how I believed that section 78 applied in my particular case - I gave him a copy of the agreement and the regulations regarding the prescribed terms and he took them and read them.

 

He mentioned the case laws I had entered and seemed to know them - he even joked that it was interesting in the wilson vs first trust one because it was ruled that even a lender has human rights. He also referred to the other one I referrred to relating to the deafult notices and said he didn't reallyunderstand the case it referred to.

 

He then said that, if the bank had issued legal action against me for the recovery of the money then the court would have no option, under seciton 127 to enforce their request if it was satisfied that the documents were not sent to me. He also said that the act gave the court the power to reduce the amount the consumer was to pay against the agreement, if anything.

 

The bank woman then said: "Sir, do you think that Mr Un1boy has been a bit pre-emtive in his issuing of the claim as the bank have not actually tried to recover the money from him through the courts yet?!"

 

Judge: "possibly, but that would be something that would need a hearing in order to decide."

 

Me: " so, sir, could that effectively mean that the bank's counterclaim would not been enforced?"

 

The judge smiled at me, looked at the bank woman and basically said:

 

"Well, it would seem that they walked into section 127 themselves."

 

He then asked the bank woman how long she thought the trial should last. He did turn to me and explain that he only asked her because he felt she was more equipped/experienced to know how long the hearing should take, which I thought was fair enough.

 

He then explained that it's being allopcated to the small claims track and explained to me that I would need to send everything to the court in an indexed bundle, making references to the relevant lords' rulings etc. He then asked if 14 days was ok, but we agreed on 21 days because I am not available for a week.

 

It was actuially quite "enjoyable" in the end because the judge was really nice and seemed to know what he was talking about. One of the first things me mentioned was the consolidtion application that was dismissed. He explained that he could not and would not change the decision made by another district judge. We had a conversation about the other claim (current account one) and I explained the differences. We agreed that both would be heard on the same day, by the same judge and that the hearing would take 3 hours.

 

I think and hope that he has reserved the claim(s) to himslef because he said that he would allocate the other claim and that if the system was to slip up and I were to get an order from another judge for it, relating to allocation hearings or whatever, that I must call the court and tell them to send it to him instead.

 

AFTER THE HEARING:

 

the bank woman came out and was saying that he was nice and that it looked like he has reserved it for himself.

 

She questioned me re the consolidation and asked if I was against it at the time, I said - Yes, of course. I said that I did not want them consolidated because they had seperate issues.

 

She then said something like, and, if they were consolidated, they would have the same claim number and if one sid eof it would fail, the whole claim would have"

 

I said, "Exactly"

 

She said, "So, you feel that one claim is stronger than the other"

 

I said: "not at all.....the DPA request I asked for even proves that I was not sent the info required to invoke the OFT's determination under section 74 of the act, so I know that I'll win...the reason I wanted them heard seperately is because the issues are seperate and the damages being claimed are different. I explained that I would be happy, as ever, to discuss a settlement if they wanted to put one forward."

 

Then she said, " I need to make a call - not about this one, about another case"

[un1boy]

ooh, before the hearing the bank woman mentioned the FOS's ruling and said that there was nothing stoppoing the bank from using it.

 

I told her though, that after speaking with the case handler, he said that they dont take the law into consideration. She then said, well, they do look at regulations and laws....I said, they cant have otherwise they would have ruled in my favour and asked her if the she was saying that the guy who made the ruling was wrong, depsite telling me that he did not take the law into account.

 

She said, well, you'd have used it if he had ruled in your favour - I said, I wouldnt have needed to because you would not have been able to take it to court.

 

Funnily enough, the judge mentioned the FOS's ruling and basically dismissed it. He said:

 

"And this went to the FOS, didn't? You didn't have any luck, did you mr un1boy?"

 

The bank woman tried to justify it, saying something like - no, the FOS ruled in our favour.

 

I said, "No sir, but the case handler said that they do not take the law into account"

 

I cant remember his repsonse, but I know it was something like a "hmmm" as if to say, yep un1boy you're right, it cant be used....

 

He then just moved on and that was the end of it.....

[Alphageek]

Fascinating account un1boy.

[TideTurner]

Un1boy, sounds like the o/s were sounding you out and finding out if you knew your stuff. Wouldn't be surprised if an offer was in the pipeline.

[robcag]

Well done un1boy.

 

Things seem to have gone well for you after all your hard work and persistance, and you handled the opposing barrister very well!

 

Good luck for the future in this case!

 

Cheers

Rob

[hisholinessthepope]

Well done uniboy, another battle won by the sounds of it. Lets hope you win the war soon.

[mcuth]

Nice one un1boy - sounds like you've got a good Judge there

 

Cheers

Michael

[patrickq1]

well done uni looks like you are able to handle whatever comes your way so well done mate

patrickq1

[un1boy]

Thanks for all of your comments. It makes a difference that the Judge was so good too. It's been a long time and I'd hope that I get an offer soon.

 

thanks for everyone's support - it has been tough and very stressful, but it makes a difference having a group of people to reassure and support me through the process.

 

Will just wait and see now, I guess.

 

I'll keep the thread updated but I am going away for a week, so won't be in the country for a while - so if I don't reply for a week or so, that's why!!

[TideTurner]

un1boy, happy travels, in the knowledge that many would have buried their heads. Instead, you have chosen to face your demons, and are on the brink of successfully beating their oppression.

 

You have provided much to many.

 

Enjoy your break.

 

Tide

[redsue]

enjoy your well earned rest uniboy and well done

[un1boy]

Thanks for your messages.

 

I am going to be writing to the OFT soon about all of this, asking for their explanaion into why the lemders are allowed to breach the terms of their Consumer Credit License (CCL) without any penalty.

 

In order to keep things in order - I'll start another thread and obviously post a link to it once it's all done.

 

This may not happen until I have sorted this current claim as I am currently helping a friend who has been a victim of identity fraud try to get the lender to stop threatening legal action and to "suspend" the default they have placed.

 

I am also helping some friends and family get CCJ's and other defaults lifted for the lenders having no CCA etc.

 

Once I am ready, I'll let you know and hopefully then you can follow that series of accounts.

[un1boy]

Oh well, that's the bundles sent off - a total cost of £16 (receipt kept, of course!).

 

I don't know if what I've put in it is right, but hey ho!

 

So, any idea what happens now?

[un1boy]

*bump*

[car2403]

So, in the hearing, the Judge ordered you to disclose within 21 days and that is what you've done, right?

 

Did he mention their disclosure? Sorry, I'm skipping through the thread, because I've been offline for a bit and haven't caught up yet.

 

Usually, you would have had directions for the small claims track in each case, which states when parties should disclose to and give a date/time/location for the hearing. Doesn't seem like this has happened here yet, though?

[un1boy]

So, in the hearing, the Judge ordered you to disclose within 21 days and that is what you've done, right?

 

Did he mention their disclosure? Sorry, I'm skipping through the thread, because I've been offline for a bit and haven't caught up yet.

 

Usually, you would have had directions for the small claims track in each case, which states when parties should disclose to and give a date/time/location for the hearing. Doesn't seem like this has happened here yet, though?

 

Hiya

 

Yeh it has happened, both parties had to give each other our papers by the same date.

 

I have not received their bundle yet because they sent it the day before by courier,, knowing that I would not be in - I can't get it for 4 days now because they can't deliver again until that time.

 

I assume that, because they have proof it was sent, it is deemed sent and that I don't have to have received it?

 

Also, what's the process now - I guess the haring date will be allocated and that's that?!

[car2403]

I assume that, because they have proof it was sent, it is deemed sent and that I don't have to have received it?

 

Also, what's the process now - I guess the haring date will be allocated and that's that?!

 

 

Yes and yes

 

 

Although, I thought it was already allocated? You're waiting for a hearing date now.

[un1boy]

Yes and yes

 

 

Although, I thought it was already allocated? You're waiting for a hearing date now.

 

Sorry for not being clear car - it has been allocated in terms of track. The actual hearing date hasn't yet.

 

I hope it's befor xmas - I could do with not having to go through another christmas with all this over me!!

[un1boy]

Apparently the hearing date is in less than 2 weeks - apparently it was on an order sent in June....lol, must have missed that one!!

 

Ah well, wish me luck!!

[Alphageek]

Good luck

[un1boy]

Good luck

 

Thanks mate.

 

to be honest, I'm crapping myself - anyone know the format of trial hearings and the things I should/will have to say?

[Alphageek]

Not me, sorry. None of my creditors has dared set foot near a court room.

 

Someone will be along soon to advise.