AMEX & AIC & Newman

[Bill Shidding]

You couldn't have it both ways, in that;

 

The agreement is unenforceable.

And

Unlawful termination.

 

IMHO

If the agreement was enforceable, then unlawful termination is possible.

 

There is a possible reason for appeal, if you can show that you "agreed" to end the agreement after receiving the termination notice, but before receiving the second dn.

Creditors can send a million dns before termination, but not one after it. Save for one scenario. Unlawful termination.

I think you have been following the DDN further discussion thread, you will get my drift from that thread.

 

All the best

 

Bill

[pedross]

 

I strongly refuted this argument, stating that how could they possibly issue a new DN on an already terminated agreement and then terminate again. The DJ's view was that I couldnt have 'my cake and eat it basically' I.e. either the default notice was valid and thus terminated the agreement or it wasnt valid and therefore the agreement was still live.

Contrary to any argument I put forward she still referred to Rankine as the leading light.

 

 

I believe that this is the issue that cost you and is the one we all need to be prepared for. I know Bill had a similar situation but 'two wrongs don't make a right'.

 

The fact that the DN was defective does not stop them illegally terminating the agreement and as you accepted that the termination had occured the agreement was no more. You were correct in my opinion, It is not possible to default when there is in fact no agreement in place.

 

The mistake the Judge made was that they could not terminate the agreement when in fact they could not legally terminate would be more factual.

 

I am sure more knowledgable people will come along soon, I see you already have some good replies.

 

Think positive.

 

Pedross

[Guest janensteve]

I too had the concept put to me ny tyhe judge that although DN was flawed - agreement endured that I couldnt have it both ways!!!!

 

i don't know whether its because the thrust of the argument was centred around the Consumer Credit Act and she thought i wanted the benefits of the CCA but not the responsibility.

 

I think the key is to argue the Consumer credit act firstly and then to ensure that the judge is equally clear about contract law.

 

I was lucky, because the 2nd DN was issued after termination, the judge held that the 2nd DN survived because the 1st termination letter cannot subsist on the back of a faulty DN. In my case, the 2nd Termination Notice was also defective as it pointed to an agreement date that didn't exist, so judge dismissed case as creditor was sure to discontinue claim and therefoe unfair to subject me to litigation if claim was bound to be discontinued

I am sorry your case was adjudged the way it did and this is why it is crucial that a robust template skeleton argument with case law to back up and recite is created on this forum that is cpaable of being printed off and produced in court to stand up to the creditors.

 

I had to sit opposite a cock sure barrister, i was bricking myself !!! soon wiped the smile off his face when i turned on the diodgy 2nd Termination Notice. should have studied his brief properly before turning up.

[ScarletPimpernel]

I am extremely sorry to hear the outcome of your case, Blue Thunder, and hope you will appeal. In which district was the case heard?

[Josie8]

Did you make any payments to the creditors or the debt collectors after receiving the original DN & termination notice ?

[banker_rhymes_with]

Hello BT!

 

Just a quick one for your collection of bumf needed for the Appeal.

 

Interesting that they relied upon Para 16 of the Rankine Judgment, and also relied upon Sir Roy Goode in almost the same breath.

 

This is what Sir Roy Goode had to say about Para 16 (with thanks to PT2537 for this):

 

Professor Sir Roy Goode QC's view on that Judgment:

 

Comment

 

The court's strident and blunt approach is to be welcomed. This includes the statement at paragraph 9 that the Consumer Credit Act was introduced to protect the individual unsophisticated in financial affairs in contracts with unscrupulous and sophisticated financial institutions. It was not designed to help individuals in the financial services business make money out of financial institutions through exploiting its undoubted technicalities. In the latter regard, the court did not hesitate to dismiss the Rankines' various arguments in a commensurate tone.

 

However, with respect, it is submitted that Mr Justice Simon Brown QC was mistaken when he stated, at paragraph 16:

 

'In the Tesco case, where they are seeking enforcement, section 78(6) of the Act does not have the effect contended for by the Rankines. First, the prohibition is against a creditor 'under an agreement'. The agreement was at an end. Therefore there is no reason why there cannot be enforcement.

 

Secondly, the [2008] GCCR 7701 at 7713 word 'enforce' is not descriptive of the commencement of proceedings. Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement. It is not actually enforcement.'

 

The grounds for questioning the statement are the following:

 

(i) In section 189(1) 'creditor' is defined as 'the person providing credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement, includes the prospective creditor'; 'debtor' is defined as 'the individual receiving credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement includes the prospective debtor'.

 

(ii) The Agreements Regulations identify 'creditor' and 'debtor' with reference to their respective descriptions irrespective of the status of the agreement. In other words, the expressions are used to identify the relevant parties under, or to, the agreement.

 

(iii) The expression 'enforce an agreement' is utilised in the Act to mean to take steps to assert one's rights under the agreement, regardless of whether the agreement has come into force, is still extant or has been ended. Thus, section 65 of the Act uses the expression 'enforceable' when referring to whether an improperly executed regulated agreement is enforceable against the debtor on an order of the court. Section 127 refers to enforcement orders in the case of infringement. Applying for an order under this section might amount to seeking enforcement of the agreement, as the heading to Part IX also suggests, namely: 'Enforcement of certain regulated agreements and securities'.

 

So, little by little you can pull apart this Judgment and get your Grounds for Appeal lined up.

 

Cheers,

BRW

[car2403]

What level of Judge heard this case? If it was a Deputy District Judge, they are probably out to make a name for themselves. They certainly will do that if they continue coming up with numpty decisions like this.

 

On the point of appealing - yes, it's a good idea. However, reality bites hard; if you appeal and get another numpty, it's only adding to your costs and the emotions of continuing to go through it. Be aware.

[diddydicky]

yet again i say this:-

 

this is of major importance to all of us

 

500 caggers x 10 quid each = 5000 towards an appeal barrister

 

instead of signing meaningless downing street petitions- lets start doing something useful

 

my 10 quid is pledged any one else? or is it all talk!

[the_shadow]

yet again i say this:-

 

this is of major importance to all of us

 

500 caggers x 10 quid each = 5000 towards an appeal barrister

 

instead of signing meaningless downing street petitions- lets start doing something useful

 

my 10 quid is pledged any one else? or is it all talk!

 

DD,

 

No disrespect to anyone but a case was given donations for counsel by CAGGers in a fight against a CRA and DCA respectively I believe, the case was settled under a part 36 offer I think. There was some bad feeling towards the claimants claims that he was going to go all the way but in the end understandably everyone must look after their own best interests and his was agreeing to the offer.

 

Obviously an appeal is different but the basis of donating money to a cause is the same I feel.

 

S.

[Josie8]

Thought this may be of interest from the Dodgy Default thread

 

courtesy of SX 20

I follow you too. It is a great shame that after stating in the Act that before becoming entitled to any of the things set out in section 87 there must be service of an effective DN, parliament did not then see fit to state what the consequences would be if the entitlements were demanded where there wasn't an effecive DN. Back in 1974 We had a wealth of judge made contract law but precious little case law governing situations so heavily regulated as consumer credit agreements

 

Since then we have had cases like Woodchester v Swayne help us consider what the law might be where a creditor seeks to claim section 87 entitlements without complying with the requirements for an effective DN. In Woodchester, where the creditor issued a DN claiming in excess of the actual arrears, the DN was ruled ineffective and the creditor was denied all of the claim to include the claim for early payment of instalments ordinarily due in the future, apart from the precise arrears of instalments owing at the time of the issue of the DN.

 

Had the Court of Appeal deciding Woodchester been as kwayward as the Judge who decided Blue Thunder's case, the Court of Appeal would have adjourned the appeal to enable Woodchester to issue a correct DN re-convened when that had occurred and then found for Woodchester. We know this didn't happen.

 

It's probably worth repeating again what section 87(1) says

 

Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

 

In the context of Blue Thunder's case, yesterday was the adjourned hearing of the creditor's application for summary judgment. At such a hearing it behoves the applicant to establish to the satisfaction of the court that the defence is such that the defendant has no real prospect of successfully defending the claim or issue (CPR 24.2).

 

At the first hearing an issue was raised that the creditor's default notice was ineffective because it allowed just 12 or certainly less days than the minimum 14 days prescribed by the Act. With this revelation the court adjourned the hearing as I say, and the new hearing took place yesterday.

 

In my view the decision at the first hearing was plain wrong and had I known of the case earlier than I did, my advice to Blue Thunder would have been to submit his own application for summary judgment against the creditor. Section 87 speaks of a time when a creditor can become entitled and refers to the time when that might happen by reference to a pre-condition that there has been service of a default notice in accordance with section 88.

 

When the first hearing took place the judge ruled that the DN relied upon by the creditor was ineffective. At that point therefore it ought to have been clear to the Judge that contrary to the creditor's argument, Blue Thunder did indeed have reasonable prospects of success. Further more of course, had Blue Thunder put in his own application for summary judgment the court ought to have ruled that the creditor had no prospect of success on its claim (save for any arrears still owing at the time of service of the DN) because the pre-condition giving rise to when the creditor becomes entitled to the things under section 87 had not been fulfilled. In short, the creditor had no reasonable prospect of success. Or put strictly speaking : the creditor had no reasonable prospect of success as things stood at the date of that hearing.

 

So for that reason the hearing was adjourned and an effective DN was then served during the interval so that by when the court reconvened, the court could pretend there had never been an obstacle to awarding the creditor summary judgment.

 

All this sticks in my throat. And there's more. Evidently (I will be corrected if I am wrong) the Judge allowed the application for judgment without first requiring the creditor to amend the Particulars of Claim by reciting its reliance upon the matter of the second DN. The judge decided the case on evidence and submissions which formed no part of the creditor's pleaded case!

 

Worse, the judge decided in the creditor's favour in a claim commenced before the right advanced in the evidence and submissions had crystalised. By that I mean a claimant must have a cause of action, a legally recognised right to sue if you like, readily avialable at the time the proceedings are begun. Put another way, I would not expect to succeed on a case issued by me today for the price of the fee I propose to charge for conducting a case I might be instructed to deal with in 3 months time. You've got to get your horse before your cart.

 

If the creditor in Blue Thunder's case based its case upon the second DN delivered during the interval between the first and second hearings of its application for summary judgemnt and thus had no right to any of the section 87 entitlements until then, what was it doing issuing proceedings last year? Evidently the creditor and judge were alert to that difficulty. I have seen the skeleton argument put in by the creditor by which they endeavoured to get around that difficulty. In it they contend that the right to sue for everything crystalised on Blue Thunder's missing an instalment payment. Again and in my opinion, utter nonsense. Such an argument entirely ignores the pre-condition element of section 87.

 

I suppose this ought to be added to Blue Thunder's thread which I found earlier today. In my opinion the decision is quite clearly appealable and what I understand of the the judge's handling of the case and reasoning is shocking.

[Rhia]

Terrific. Blue Thunder I hope this gives you the confidence to push forward with an appeal. Hopefully the site team will help you in this matter.

 

SX20 unfortunately I seem to hear more and more of such judgements and cases where the judge steps right over the line of impartiality by openly siding with the big companies with barristers.

 

Having been a LiP myself I have been on the receiving end of such treatment where the judge realised I had a case and he started to undermoine it by putting words into the opposing barrister's mouth.

 

The court system is weighed heavily and quite openly against Litigants in Person. I think it's time to complain over and above the courts but I am not sure where would be the right place to start.

[Guest janensteve]

the judge in my case was helpful, insisting that she read out the relevant sections of the white book with comforting words such as "and the defendant might want to take note of this particular section".

 

I guess it is sad that judges are human after all, and probably have never endured poverty or strife, so are unable to truly see matters from a debtors view.

[foolishgirl]

I suppose this ought to be added to Blue Thunder's thread which I found earlier today. In my opinion the decision is quite clearly appealable and what I understand of the the judge's handling of the case and reasoning is shocking.

 

Thanks for putting all this down here Josie. I'd not seen BlueThunder's thread but will now hop over to read it in full.

[brokebutnotbeatn]

BTW i'm happy to pledge £10 whatever BT decides to do - fight or keep. Don't mind. My £10 is paltry, but as DD said...

[Blue Thunder]

Hi everybody,

 

I must say I am overwhelmed at the support I have received on here. Not just the good wishes but also the level of detail that has been afforded.

I know that Sx20's thread didnt appear on here to begin with but thanks for bringing it on to Josie and thanks again to SX20 for the detailed and eloquent content. How I wish you had been on MY side yesterday!!!

 

I am also humbled by the suggestion from diddy dicky and also from brokebutnotbeatn to contrinute to an appeal fund.

Let me state on here right now. I WILL appeal (subject to finding the right barrister AND convincing me of course we have the case for appeal) There is so much from everybody so far giving me the grounds to begin this. I suppose I just need to hear that from the horses mouth and the one whom is prepared to stand up in front of a circuit judge and fight this case. I CANT fund it out of my own pocket and dont qualify for legal aid - BUT I assure you all - I will find the way to do it. Whilst I am humbled by your pledges - I will do this myself - not just for myself but for the thousands of people like me and you and all caggers who have been let down by our legal system. I want this (if possible) to be a landmark case - there are obvious flaws in my ruling - the law simply has to change because I stand on the verge of absolute ruin all because of poor and error strewn advice and judgement.

To answer one or two questions - the judge was a very experienced District Judge - but obviously NOT familiar with the CCA - even yesterday she asked to be reminded of what section 87 stated - in fact it was section 88 - unbelievable. Location - East Midlands!

 

Thanks again everybody and keep the advice coming!

 

Thanks

Blue Thunder

[banker_rhymes_with]

Hello BT!

 

To answer one or two questions - the judge was a very experienced District Judge - but obviously NOT familiar with the CCA - even yesterday she asked to be reminded of what section 87 stated - in fact it was section 88 - unbelievable.

 

P.P.P.P.P.P.P.

 

Cheers,

BRW

[diddydicky]

c'mon site team- just because it didn't work once doesnt mean we have to stop trying

 

if you have the technology to publicise an appeal accross all the debt and bank group threads we could raise 500 pledges in no time

 

if the guy wins on a CFA the reclaimed costs could be put back into a fighting fund for another day

 

if it goes pear shaped - well we'll just deduct it from what we are paying the OC's and DCA's - they can afford it!!

[spartathisis]

I must say I would pledge a tenner, as I did before .

 

Before I found CAG I was paying £85pm to creditors, I now pay £2.50 to one only. I have "saved" to date apprx £500, so anything that may help further "the cause" I will help if possible.

[diddydicky]

hello site team 3 down - 497 to go- lets give this a go

[the_shadow]

hello site team 3 down - 497 to go- lets give this a go

 

Make that 4, although I do so stating that I expect nothing from BT's case and it must be fought how his counsel see fit to the advantages of BT and not CAG unless the two are mutually the same at that point in time.

 

S.

[Guest janensteve]

Make that 5, and if you reach 496 pledges i will accelerate to 500 by rounding my plegde up to fifty quid.

[diddydicky]

Make that 4, although I do so stating that I expect nothing from BT's case and it must be fought how his counsel see fit to the advantages of BT and not CAG unless the two are mutually the same at that point in time.

 

S.

 

quite

[diddydicky]

if the site team dont/cant respond say by monday- how about if we all (four) of us PM one other member on the debt forums and ask them to read the thread and ask them in turn to direct one other person to it

 

(pyramid selling if you like)!!

 

we could choose letters of the alphabet so that we don't all pm the same people

[the_shadow]

if the site team dont/cant respond say by monday- how about if we all (four) of us PM one other member on the debt forums and ask them to read the thread and ask them in turn to direct one other person to it

 

(pyramid selling if you like)!!

 

we could choose letters of the alphabet so that we don't all pm the same people

 

I wouldnt feel comfortable doing that, sorry.

 

If you want a response from the site team then just click on the warning triangle and ask away. Whether they agree to this or not you'll get a response at some point but they do an incredible job and always appear busy responding to threads so please be patient.

 

S.

[car2403]

if the site team dont/cant respond say by monday- how about if we all (four) of us PM one other member on the debt forums and ask them to read the thread and ask them in turn to direct one other person to it

 

(pyramid selling if you like)!!

 

we could choose letters of the alphabet so that we don't all pm the same people

 

Site team aware