un1boy - N1 issued for breach of CCA request

[un1boy]

Thanks Dad - did you have a nice time away?!

 

1. In section 6 you want to tick both, set aside the order and order a new hearing.

 

So, the new hearing would be the appeal hearing?

 

2. In section 7 you only need to to fill out part A.

 

3. For suggestions to fill out part 7a & 8 see my post 593.

 

 

Ok - I was thinking of repeating:

 

The Judge ordered the enforcement of a regulated consumer credit agreement, subject to the transitional provisions in Schedule 3 paragraph 11 of the Consumer Credit Act 2006 so still subject to section 127(3) of the Consumer Credit Act 1974, which did not contain the the terms prescribed under Section 61(1) of the 1974 Act. In these circumstances the Judge was barred from ordering the enforcement of the agreement by section 127(3) of the 1974 Act. This is an appeal under CPR 52.11(3)(a).

Due to the sums involved, if the respondant was able to enforce the order I would have serious financial difficulties and would have to consider selling my car, which is needed for my job, in order to pay the balance. As the respondant is a private company, making billions of pounds per year in profits, they are in a position to hold the enforcement of the order.

 

4.

Remember that when the form talks about evidence this is evidence in support of your application for a stay NOT evidence in support of your appeal.

 

Hmmmm.....I don't know what to put here...if I can't use section 127(3) in support of the stay, what else do you suggest?

 

The advantage of attaching them to the appellant's notice is that they are readily available for the judge giving permission to refer to. If you are going to do it I would also include the schedule of the CCA 2006 that says they still apply to old agreements.

 

Where do I get the schedule of the CCA 2006?

 

5.

 

Either the defendant or the court must serve it within 14 days of issue ( CPR 20.8 (1)(b)).

 

I am confused by this Dad - sorry. So, they must have sent it within 14 days of the defendant issuing the counterclaim (ie sending it to the court) or 14 days of my original claim being entered with the court?

[un1boy]

Dad,

 

As for the skeleton arguments- the original order said that all parties must exchange all documents they wish to rely on no later than [date] (which was 14 days before the hearing). It says nothing about skeleton arguments specifically.

[foolishgirl]

Where do I get the schedule of the CCA 2006?

 

Well I can help on this one at least:

Consumer Credit Act 2006 (c. 14) - Statute Law Database

 

The rest's up to you & Dad, Un1..

[un1boy]

thanks hun!

[un1boy]

So, I should add the following to the appeal form:

 

11

The repeal by this Act of— (a)

the words “(subject to subsections (3) and (4))” in subsection (1) of section 127 of the 1974 Act,

 

(b)

subsections (3) to (5) of that section, and

 

©

the words “or 127(3)” in subsection (3) of section 185 of that Act,

 

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

[un1boy]

One more thing - the appeal bundle, I assume that it will need to be submitted if I am granted leave to appeal and a new hearing date is set?

[tinkerbell20]

I would think so

[un1boy]

Ok, thanks Tink!!

 

Well, I think I am going to have to go with what I have. The form needs to be in by Friday....I think I will draft the final one tomorrow and post again just to be sure so that you guys can check it over, what you reckon?

[un1boy]

I think I'll wait until tomorrow and send it on Wednesday - it has to go on Wednesday though!!

 

I'll be on here from 7pm tomorrow guys - hopefully see u then!

[tinkerbell20]

Ok, thanks Tink!!

 

Well, I think I am going to have to go with what I have. The form needs to be in by Friday....I think I will draft the final one tomorrow and post again just to be sure so that you guys can check it over, what you reckon?

 

 

Always a good idea to sleep on things...................

[dad]

Hi Uni,

 

So, the new hearing would be the appeal hearing?

 

It was in my case, but in theory they could send it back to a different district judge.

 

Due to the sums involved, if the respondant was able to enforce the order I would have serious financial difficulties and would have to consider selling my car, which is needed for my job, in order to pay the balance. To meet the terms of the order I will have to sell it quickly, which means selling it at below its market value. If the appeal succeeds I will be unable to by it back. As the Respondant is a large company, making millions of pounds per year in profits, they are in a position to hold the enforcement of the order.

 

I suggest the changes - You will have to show that they are making 'billions' if you allege it.

 

Hmmmm.....I don't know what to put here...if I can't use section 127(3) in support of the stay, what else do you suggest?

 

OK my suggestion based on what you say in section 7a is 'See attached witness statement', then attach:

 

1. A witness statement (along the lines of):

 

 

 

 

 

Un1boy (Appellant)

 

 

 

 

 

 

v

 

X Company (Respondent)

 

 

 

Claim Number: [000000]

 

 

 

WITNESS STATEMENT

 

I [un1boy] of [address] (Claimant) make the following statement in support of my request for a stay on enforcement of the order of Deputy District Judge [judge's name], pending the hearing of my appeal.

 

I will refer the attached bundle of documents (Un1-A).

 

At Un1-A 1, I exhibit a statement of my monthly income and expenditure. [either (In addition to that I have no other savings) or (In addition to that I have a [savings/whatever] account with a balance of £[amount]. A copy of my most recent statement is at Un1-A 2).

 

The only other asset I have of value is my car which is worth £[amount]. However I need this in my work as [job].

 

I have examined [either (the web site of the defendant) or (The defendant's returns to companies house)]. From there I obtained their most recent set of accounts. This shows that ther defendants annual turnover is £[Turnover/sales from profit and loss statement in their latest accounts]. I exhibit an extract from their accounts at Un1-A 3.

 

I believe that the facts in this witness statement are true.

 

[signed]

 

Un1boy

 

Attach to it an income and expense sheet. For that you could use page 2 of the admission form: n9a_0406.pdf(Leave box 11 blank)

 

If you have mentioned any savings put in a copy of the statement.

 

To get their annual report details, if they are a quoted company then it may be available on their web site for free. If not go to companies house: WebCHeck - Select and Access Company Information (It only works during office hours). You only need the page that says 'Profit and Loss statement'

 

If you want to include CCA74 s 61 and 127 I would print them out and attach them here.

 

I am confused by this Dad - sorry. So, they must have sent it within 14 days of the defendant issuing the counterclaim (ie sending it to the court) or 14 days of my original claim being entered with the court?

 

14 days of the defendant issuing the counterclaim .

 

One more thing - the appeal bundle, I assume that it will need to be submitted if I am granted leave to appeal and a new hearing date is set?

 

Correct, once you are given permission you will be given directions to prepare an appeal bundle with the respondents.

Edited September 9, 2008 by dad

[un1boy]

Hi Uni,

 

 

 

It was in my case, but in theory they could send it back to a different district judge.

 

 

 

I suggest the changes - You will have to show that they are making 'billions' if you allege it.

 

 

 

OK my suggestion based on what you say in section 7a is 'See attached witness statement', then attach:

 

1. A witness statement (along the lines of):

 

 

 

 

 

 

 

Attach to it an income and expense sheet. For that you could use page 2 of the admission form: n9a_0406.pdf(Leave box 11 blank)

 

If you have mentioned any savings put in a copy of the statement.

 

To get their annual report details, if they are a quoted company then it may be available on their web site for free. If not go to companies house: WebCHeck - Select and Access Company Information (It only works during office hours). You only need the page that says 'Profit and Loss statement'

 

If you want to include CCA74 s 61 and 127 I would print them out and attach them here.

 

 

 

14 days of the defendant issuing the counterclaim .

 

 

 

Correct, once you are given permission you will be given directions to prepare an appeal bundle with the respondents.

 

Thanks again Dad - you are an absolute star!!

 

I am surprised I have to go into so much detail on the evidence part. It's a shame I can't use what they are saying re the bank charges case- that because there is still legal uncertainty, the order should not be enforcable. lol.

 

Ok, I have tried to find the bank's profit and loss, but it's not listed as that. I can access their financial figures, but nothing is listed as profit and loss! :-/

[un1boy]

Would it be the figures under:

 

Consolidated income statement for the year ended 31 December 2007

[un1boy]

I'm confused because they keep repeating titles, but with different amounts in them!!!

[dad]

Would it be the figures under:

Quote:

Consolidated income statement for the year ended 31 December 2007

 

 

Yes that will do. The top line should be turnover/sales/income

 

something like that

[un1boy]

These are the figures:

Consolidated income statement for the year ended 31 December 2007

 

2007

2006

Notes

£m £m

Interest income ......................................................................................................................... 16,439 13,339

Interest expense ...................................................................................................................... (12,585) (9,143)

Net interest income ................................................................................................................. 3,854 4,196

Fee income .............................................................................................................................. 5,442 5,018

Fee expense ............................................................................................................................. (1,258) (1,276)

Net fee income ........................................................................................................................ 4,184 3,742

Trading income excluding net interest income ...................................................................... 1,698 1,699

Net interest income on trading activities ................................................................................ 1,789 927

Net trading income ................................................................................................................. 3,487 2,626

Net income from financial instruments designated at fair value ........................................... 4 126 59

Gains less losses from financial investments ......................................................................... 552 239

Dividend income ..................................................................................................................... 43 50

Net earned insurance premiums ............................................................................................. 5 1,921 317

Other operating income .......................................................................................................... 307 480

Total operating income

......................................................................................................... 14,474 11,709

Net insurance claims incurred and movement in policyholders’ liabilities ........................... 6 (1,674) (91)

Net operating income before loan impairment charges and other credit risk provisions 12,800

11,618

Loan impairment charges and other credit risk provisions..................................................... (1,043) (938)

Net operating income

........................................................................................................... 11,757 10,680

Employee compensation and benefits .................................................................................... 8 (4,287) (3,929)

General and administrative expenses ..................................................................................... 9 (2,872) (2,354)

Depreciation and impairment of property, plant and equipment ........................................... 22 (422) (410)

Amortisation and impairment of intangible assets and impairment of goodwill .................. 21 (142) (151)

Total operating expenses

...................................................................................................... (7,723) (6,844)

Operating profit

.................................................................................................................... 4,034 3,836

Share of profit/ (loss) in associates and joint ventures .......................................................... 47 (40)

Profit before tax

.................................................................................................................... 4,081 3,796

Tax expense ............................................................................................................................ 11 (767) (978)

Profit for the year

................................................................................................................. 3,314 2,818

Profit attributable to shareholders of the parent company ..................................................... 3,227 2,722

Profit attributable to minority interests .................................................................................. 87 96

 

[un1boy]

The form needs to be sent tomorrow and this eveidence thing is getting a bit too complicated for me - income and expenditure forms etc (bear in mind the order for the other claim was for me to pay them a grand too!!)

 

Shall I just not ask for a stay of execution? Or shall I just inclulde the seciton 127(3) and say that there is still legal uncertainty so the order should be stayed.

[un1boy]

I will just submit the page with the financial details on it.

[dad]

Un1,

 

You were right it is billions! I would use the figure of total operating income of £14,474 million

[un1boy]

Ok.........appeal form sent....I'll let you know how it goes.

 

I'm just transferring the funds to pay the other claim.

[un1boy]

Should I have sent a copy of the appeal to the bank?

[dad]

CPR 52 is your friend:

 

Appellant’s notice 52.4 (1)Where the appellant seeks permission from the appeal court it must be requested in the appellant’s notice.

(2)The appellant must file the appellant’s notice at the appeal court within –

(a)such period as may be directed by the lower court (which may be longer or shorter than the period referred to in sub-paragraph (b)); or

(b)where the court makes no such direction, 21 days after the date of the decision of the lower court that the appellant wishes to appeal.

(3)Unless the appeal court orders otherwise, an appellant's notice must be served on each respondent –

(a)as soon as practicable; and

(b)in any event not later than 7 days, after it is filed.

[un1boy]

Damn it - I haven't had a chance to send it to them yet.

 

Damn it - I'll have to get it sent on Monday!! :-/

[un1boy]

Oh well, they haven't sent me anything - none of their applications, not even their counterclaims.

 

If they try to use it, I'll mention that to the judge. The only things they sent me were their bundle and skeletoon arguments (although after the hearing!). Plus, I'm a litigant in person and thought that the court would forward it on........I'll fax it over to them on Monday though - I'll pop into the office specially to it!

[tinkerbell20]

Good luck:)