walton v rbos

[paulwlton]

The bank believes there is no legal basis to comply with a sec 77 request post judgment, this position is contrary to the OFT.

 

I have not once stated the bank must provide a signed agreement to comply with my CCA request.

 

Paul

[paulwlton]

It's strange how a personal loan suddenly starts accruing interest

 

[paulwlton]

And so It continues. Note the £1.00 postal order payment for my CCA request. Thanks for reducing the debt guys, that pound could have gone towards the fat cats dividend, i take back all i've said about ya.

 

 

 

 

[paulwlton]

Hi Paul,

 

What a thrilling read, will need some time to fully digest all i think but the above quoted did draw my eye. Are you aware of precedent set in Woodchester Lease Management Services Ltd v Swain and Co with regards to inaccurate default notices? Not only does it invalidate the default notice itself and render it void but it also potentially acts as a rescission of contract

 

 

kind regards,

shane

 

Hi Shane, yes Woodchester v Swaine is part of my draft defence.

[paulwlton]

Paul, I have been following your thread for a while - and fully understand your reason for posting EVERYTHING in full here (even though some people advise otherwise)

 

Could it be because you know who is reading this website?

 

No, and i don't post EVERYTHING.

 

Paul

[paulwlton]

The judgment the bank have submitted in their bundle, however the charges issue remains peripheral to other matters that have arisen since judgment was handed down.

 

Paul

 

 

 

[paulwlton]

Paragraph 8 of the bank's witness statement is contrary to the OFTs view, but it is for the court to make the ultimate decision.

Dear Mr. Walton

 

Further to our discussion, the question you asked is whether a debtor could continue to make requests under Section 77 post judgment. The Act is silent on this particular matter and as such we presume that this is the case until the debt is discharged. As we have discussed previously, this is not a definitive statement of the law and a court may or may not take this position. Equally, this is a general comment and, as with our previous communications, should not be taken as advice on your particular circumstances.

 

I understand that you have sought assistance from your Local Authority Trading Standards Service (LATSS) and that the view expressed by it was broadly the same. As the OFT cannot comment or intervene in individual matters and so unfortunately I am unable to assist you further, you may wish to continue to seek assistances from your LATSS.

 

Yours sincerely

 

Henry Aitchison

Consumer Credit Enforcement

 

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are addressed. If you are not an intended recipient, please notify

system.administrator@oft.gov.uk immediately.

 

The Office of Fair Trading

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Switchboard (020) 7211 8000

Web Site: The Office of Fair Trading: making markets work well for consumers

 

 

[paulwlton]

I agree, even if novation takes place the rights and duties under the CCA still stand, as such the creditor must still adhere to a CCA Request, though ufortunately debtor cannot withold payment after 12 working days due to overriding CCJ Judgement

 

 

kind regards,

shane

 

Further to the above, the creditor cannot enforce any contractual term until they produce the "true copy" ie they cannot continue to apply contractual interest.

 

Paul

[paulwlton]

And... the court cannot remove the creditor's duties under s77 etc. If there is an amount payable under the agreement; then it cannot be classed as "an agreement under which no sum is, or will or may become, payable by the debtor,...".

 

The Court claim was to legally enforce the rights under the regulated contract. It was not to supercede it. The contract still stands...

 

Nice one Edz, i have good arguments for every paragraph in the bank's witness statement.

 

 

Paul

[paulwlton]

The bank also plead in para 10: it is an abuse of process to request copy agreements etc after 9 years. I think that's desperate.

[paulwlton]

The bank seem to contradict themselves, by claiming in para 8 that they've no legal obligation to comply with sec 77 post judgment and that the judgment precedes the contract. However, according to para 14 they claim my liability remains under the contract.

 

Once judgment is obtained for monies due under a contract the contract merges with the judgment IT DOES NOT SUPERSEDE IT. FACT.

 

If anyone has any arguments regarding the banks witness statement feel free to post or pm me,

 

Paul

 

Paul

[paulwlton]

Cobbetts attempt to intimidate the LIP.

 

[paulwlton]

Paul

 

Do they expect you to pay this.

 

 

Yes, i'm afraid this is not the small claims court. So anyone who attempts to set aside judgment should be aware of this.

 

I haven't posted the second page - the costs increase.

 

Paul

[paulwlton]

Paul

 

Whats the limit on the small claims court as I was going to try and get my CCJ/C-O set aside in the new year but looking at these costs I may not bother.

 

The limit in small claims is £5000.

 

Any application to set aside judgment is not covered by the no cost rule. You have to take it on the chin i'm afraid.

 

Paul

[paulwlton]

Thanks for the PM VB,

 

It appears the hourly rate for grade A has been downgraded from £170.00 Jan 2007 to £135.00 an hour in Dec 2007!.

 

Paul

[paulwlton]

I'm sure I don't need to remind you Paul to think very carefully about whether to proceed. No doubt you feel you have a water tight case, but you know that something might be thrown up in court that you've missed. Even if you withdraw now, you may still have to pay costs, although you may be able to negotiate that you'll withdraw the case if they don't claim costs from you. It may or may not work.

 

You are absolutely right not to be intimidated by the costs threat, but by the same token just sit back and think about if you and your family can afford the risks. Principles, rights and justice are wonderful things, but a roof over your head is more important, and it's easy for others to encourage you on, but at the end of the day it's you who would pay.

 

In all honesty I'm not just posting this for you, but for others thinking of fighting on the basis of theories of how the law should or could be interpreted.

 

Just out of interest, have you worked out how much the costs are in total so far including VAT?

 

I am fully aware of the financial consequences caro, and no i can't afford the risks, but i have no other option the bank will not close the accounts and they remain accruing compound contractual interest.

 

Paul

[paulwlton]

Caro, i've emailed you.

 

Paul

[paulwlton]

In any case, result or no result. I have a meeting in the new year with my Lord i know personally, who chairs a committee in the house.

 

Paul

[paulwlton]

I would be more than happy to donate, gaging how a court and more importantly a district judge acts in situations like this invaluable, though I've been in court for similar cases on many occassions we still have to few 'real experiences' to go on. Maybe a post outling the facts of the case, donation etc and a link to a paypal account would be allowed?

 

kind regards,

shane

 

Thanks guys, but like i've said if i incur costs i'll take it on the chin.

 

Fingers crossed i get the right judge.

 

Paul.

[paulwlton]

Thank's Alan, your comments are appreciated.

 

Paul

 

 

I have not been on this thread for some considerable time, and have just spent some time going through the events. Whilst I appreciate that it is late in the day, I would make the following observations that I think may be helpful:

 

 

1) I am concerned that the concealment argument you used in relation to the charges may have been ambiguous. It is essential that the argument concentrates strongly that the bank concealed the true nature of the charges, in that they did not reveal that the charges exceeded the costs.

 

Agree, and whilst the debt is live and ongoing it would be unjust for the court to allow the bank to profit from their misrepresentation.

 

2) You said that you questioned the charges in 2002 - what was their reply. If they gave an indication that the charges were lawful and that they related to their costs then that is a fraudulent misrepresentation.

Don't remember that one.

 

3) I am still not convinced that section 77/78 apply where CCJ is in place. My understanding is that the enforcement of a judgement debt, is not reliant on the CCA.

 

Only a court can make a definitive ruling but my advice from a consumer lawyer is sec 77 applies.

 

4) Your claim is based in civil law, because of this I would say that the fictitious agreement arguments need to be under common law fraud and the Misrepresentation Act, not the Fraud Act. Without being able to establish fraud I would agree with the judge's view that revisiting the original paperwork would be statute barred.

 

Yes my claim is based in civil law, but my understanding is that if an offence has been committed the DJ has the power to refer it to the CPS.

 

5) I am concerned with the argument they have used about the destruction of documents - especially as you raised the issue about charges in 2002. To destroy documents relating to an account in dispute would breach the FSA Principles. I would also suggest that they have breached:

 

Why would they destroy documents whilst a debt remains?. I note they haven't destroyed the fictitious statements that have been ongoing since 1998.

 

a) The Money Laundering Regulations 1993, 2003 and 2007 which state that key documents (such as agreements) must be kept until 5 years "after the business relationship" ends.

 

b) Schedule 18 of the Finance Act 1998 (paragraph 21), which states that "all supporting documents" must be kept for six years after the end of the tax year - I would interpret that to mean that on the case of a loan, the whole file would need to be kept for six years after it is repaid.

 

c) Sections 221 and 222 of the Companies Act 1985, say that a public company is required to maintain records for a period of six years (section 222(5)(b). As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

Thank's Alan, i'll have a read up.

6) The banks admission of a mistake on the default notice should be clear evidence supporting your contention that you have a defence that has a

good prospect of success.

 

Agree, this proves the bank had no legal right to obtain judgment.

 

7) The PPI misselling will also be based on misrepresentations during the selling process. Have a read through the stickies in the PPI Forum - this might also help you show that fraudulent misrepresentation occurred.

 

Agree, but hard to prove. My word against theirs.

 

8) The question about the consolidation and changes to the structure of the accounts and loans may also be worth looking at - was this in your interest or theirs?

 

Alan, i have submitted evidence that will prove the bank set me up.

 

 

Hope all that helps.

[paulwlton]

Will check out the Misrep Act. I think my case is strong, the ring binder containing the documents i have submitted reads like a book.

 

I think it was BF who said i wouldn't stand a chance challenging a seven year old judgment which contained a hefty £95.00 in default charges. Well i won.

 

What i'm saying is all judges have different interpretations of the law, that's why we have appeal courts.

 

Paul

[paulwlton]

I too think you have a strong case - but I always prefer to have more ammunition than I may necessarily need.

 

Agreed. A point to note Alan - my reference to the Fraud Act 2006 is not something i'm relying on.

[paulwlton]

Paul can you give me more info on the above. Same boat as me with charges on a CCJ

 

Yes mate, it was a set aside against Lloyds who had levied charges on my account previous to judgment in 2000 I challenged the judgment in April this year.

 

Paul

[paulwlton]

This was the order HAK, hope it gives you some hope in your quest.

 

Note DJ Hill is one of two sitting next Friday.

 

[paulwlton]

There are two conflicting positions as regards the basis for contractual interest and the requirement to provide a CCA post judgment.

 

The contractual interest bit did show up in one case;

"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."

 

The case can be read here ; House of Lords - Director General of Fair Trading V First National Bank (and a very handy bit of work it is too).

 

The contract is considered ancillary. So the judgment doesn't supersede the contract.

 

Paul