CCA or no CCA???? Aaaaaaaaahhhhhhrrrrrrrrr! !!!!!

[Shidoshi]

Hi all,

 

(Deep Sigh... here goes)

 

Them - Claimant

Him - Defendant

 

Something the Defendant discovered after the first court hearing...

 

PCP - You own the vehicle and are liable for the finance money. Any vehicle repossession requires a court order...

HP - You do not own the vehicle and hire it, to purchase at end with some agreed lump payment.

 

This story begins...

 

• 3 years ago Defendant signs a 1974 CCA Regulated PCP for a vehicle (Big bold letters on the front of agreement!)
  
• 2/3 years into agreement defendant defaults (by 1 payment)
  
• Defendant has family circumstances and must avert attention home
  
• Defendant calls Claimant to inform of extreme change in circumstances and options
  
• Defendant requests to personally sell the vehicle to mitigate losses
  
• Claimant denies permission
  
• Defendant has a concrete buyer for the vehicle at 97% of settlement.
  
• Claimant denies permission
  
• Defendant under duress surrenders the vehicle
  
• Claimant auctions vehicle for 70% of settlement
  
• Defendant is billed for remainder
  
• Defendant waits for court papers
  
• Claimant sneakily serves at an obsolete address
  
• Claimant gets judgement in default as defendant had no knowledge of claim
  
• Claimant sends in bailiffs to defendants property
  
• Claimant gets interim charge put on defendants property
  
• Defendant given court date for full charging order hearing
  
• Defendant goes ape****
  
• Defendant contests judgement
  
• Defendant has judgement set aside
  
• Defendant has interim charge removed
  
• Defendant awarded costs (although still not paid)
  
• Claimant re-serves to real address
  
• Defendant responds with defense
  
• Claimant awarded judgement (hearing 1)
  
• Defendant argues quantum (hearing 1)
  
• Claimant asks full amount (hearing 2)
  
• Defendant argues that it was not mitigated, he had a buyer with finance approved who had interest in the vehicle. (hearing 2)
  
• Defendant offers 3% (as would have been if the vehicle was sold privately)
  
• JUDGE Notes it's a PCP under CCA, vehicle is defendants property and should not have been demanded back - potential agreement breach, relisted for later. (hearing 2)
  
• JUDGE asks for legible copy of agreement and re-lists (hearing 2)
  

 

... and without prejudice

 

• Claimant asks for 70% plus costs to drop judgement
  
• Claimant then asks for 40% plus costs to drop judgement
  
• Claimant then asks for 40% only to drop judgement
  

 

.... and here's where it cranks up a notch... interesting....

 

• Claimant then writes to say... drop hands, we go, you go!?!
  
• Defendant asks for his costs already awarded for lifting the charge on the property, and cost for defense up to date
  
• Claimant offers 9% of total costs
  
• Defendant asks for an apology letter and 70% costs
  
• Claimant pursues to court to contest COSTS... no witnesses from their side attend (hearing 3)
  
• Claimant argues permission to sell vehicle was given (Hearing 3)
  
• Defendant brings witness in who would have purchased vehicle (Hearing 3)
  
• Claimant "comments" laughingly how the agreement is not really CCA as over threshold (hearing 3)
  

 

.... and then the brick wall at 100mph....

 

• JUDGE awards claim and costs in favor of Claimant... because the amount of credit was a touch over the CCA threshold for it to qualify under CCA rules, therefore, the agreement is water tight and they can pretty much do what they please... oh and one should have known that it was ones vehicle and one can sell it any time.
  
• Defendant stumbles his words... points out it says "Regulated... 1974...Act" on front of the agreement... Sir...
  
• Defendant points out log book is with Claimant for security reasons at all times... sir
  
• JUDGE "knows" you don't need a registration document to sell the vehicle.
  
• Claimant Unexpectedly and most probably "jubilantly" SHOCKED
  
• Defendant CRUSHED
  
• Defendant BROKEN
  
• JUDGE "Good afternoon then gentlemen"...
  
• Defendant didn't seem to think so any more.
  

 

So... what do you think should happen next in this story?

[I've got no money]

Ouch - how much was the amount of credit...what was the date of judgment - can you post a copy of the original particulars of claim, with anything identifiable removed - how much was the claim for

[Shidoshi]

Hey I've got no money, (you as well?!?)

 

The initial agreement was about £460 over the £25k limit for it to fall under the Consumer Credit Act of 1974.

 

The 2008 revision does away with this limit.

 

Judgement was Friday 13th.... yes.... I know.

 

Worse still, the shop next door had no crunchies... it's a conspiracy and a sham I tell ya.. a sham!

[I've got no money]

No - all my CCA's are under £25k

 

How much was the judgment for. Was this a Fast Track, Multi Track or Small Claims Track - how much were the costs awarded

 

The next stage would to appeal it but I'm not sure if you have grounds to appeal - I don't know if them telling you that the Act applied expresssly incorporated the act (as terms of the contract) into the agreement in which case the point of law to appeal on would be that the judge erred in law in finding that the terms of the CCA did not apply as they had been incorporated into the contract by the agreement of the parties.

 

Just a thought - but with any appeal the first question you have to ask is do the amounts involved justify an appeal. if they do you only have a very short period of time to lodge an appeal, 21 days after the date of decision (have a look at CPR Part 52 - both the rule and Practice Direction). The appela is done by a standard form to which you have to attach quite a few bits of paper. If you have any questions about the process come back to the forum and ask.

 

Hopefully somebody else will have a look at my suggested grounds and comment on them because of course I am not an expert on consumer credit and consequently I could be wrong. With any appeal it is in your interests to see your own solicitor and to take all of the documents with you so that he can consider them properly. You may qualify for legal aid

[I've got no money]

I forgot to mention the form you complete is an N161 - it has notes which explain how to fill it in. If you get the form, its' available online as are the civil procedure rules, and have a look and then post any questions.

[Shidoshi]

Hi mate,

 

I understand what you're saying.

 

I don't feel I have grounds to appeal, because after speaking to the OFT, they say the judges word is final and we can't take this any further.

 

However, the FSA suggested that I write to the company using their template letters and telling them what I think... well not in so many words I doubt!

 

To tell them that I have been mis-sold a product of theirs and what I want them to do about it.

 

They have eight weeks to respond, after which I can take this further.

 

My worry is in eight weeks, they'll have bailiffs round with a fully slapped charging order... but wait a minute... I've sold my house... could they infact reverse the sale of the property....? what about the wife and kids...? all these things running through my head pal.

 

Right now, I'm nursing my wounds from yesterday... I can't think straight to be absolutely honest.

 

The amount initially claimed was over £5k so not small claims.

 

Their costs came to over £7k.

 

To be fair, the judge appreciated my situation (not enough though!) and slapped their costs back at them, awarding only some filing fees and about £1k for the rest.

 

Do I qualify for legal aid? most probably yes, but I've been fighting everything myself... reason?

 

Oh you don't want to know... I was stiffed by a solicitor firm once, he's now doing hard time, but not by me, by someone else he stiffed first... needless to say, I find it difficult to turn to well spoken, well educated maturely aged solicitors now.

 

Are there no ethics left in this world I ask?

 

Thanks for your response though... stay with the light luke...

[Shidoshi]

deep deep down... in the pitt of my stomach... I hope the poll lets me make a rap album. I don't know how much I have left inside for battle deux.

[I've got no money]

I'm not sure that I agree with the OFT - that's why you have an appeal system...

 

There are some really crap Solicitors around but there are also few good ones...I s'pose the problem really is finding one.

 

Did the Judge make any order for payment. If the order is payment within 14 or 28 days make an application to vary it and to pay by instalments. If you get an instalments order and you stick to it they can't get a charging order. Just a thought.

 

If it was me I would try and find a half decent lawyer and see if you can get emergency legal aid for a counsels advice on appeal. The more I think about it this case isn't actually a CCA case. I think that the way it should be presented is that the contents of the CCa was incorporated into the agreement by the express agreement of the parties. It then becomes a contract case. Under the contra proferentum rule it should have construed in your favour...

 

Whatever you decide to do...good luck

[I've got no money]

If you want to pm me with the area you live in I'll see if I can suggest a firm of Solicitors

[Shidoshi]

Thanks so much man, it's nice feeling knowing "we are not alone"...

 

I have so many court cases... about four I'm currently dealing with, three I've already lost and many more pending... all because that solicitor stiffed my business and the repercussions are coming about personally... While he gets three square meals a day... exercise, a roof over his head... I fight for the roof over my families.

 

Mmmm... anyhoooo lets see. (Thinking out loud here)

 

My argument was that it was a PCP regulated by consumer credit act 1974.

 

By which right, it's my vehicle and they can't sell it nor request it...

 

However in the agreement, it states clearly that if the agreement is in default, they will locate and if necessary sell the vehicle.

 

According to PCP rules, they can't do that.

 

What the Judge saw was that as it was over the threshold, it's not bound by CCA rules, therefore it's an agreed and signed unregulated contract, even though it says Regulated... 1974.. Act on the front.

 

Two other things:

 

• the judge didn't get his copy of a legible agreement, instead I handed over my original copy, so the claimant didn't satisfy the order,
  
• I didn't get full disclosure until three days before hearing 3 - this was brought to the judges attention also... but to no avail... as the statements were brought forward by the claimant in hearing 2.... and it's those very statements I didn't have in hearing 2 which i requested for in writing three times from the claimant, to only get them three days before hearing 3... so why was this not taken into consideration?
  

(breaks out of thought)

 

On Friday after the judgement, I had hit rock bottom, I had no pride left... and so went to see a Solicitor, based in West Yorkshire for post case advice. no appointment, no schedule... just walked in off the street.

 

They came highly recommended by someone I know and trust.

 

The principle put everything on hold and spent 3 hours Friday afternoon going through the case history. He even called in a Barrister. Eventually, both agreed, that the best course of action is to wait to see what the judgement says... partly because a deadline was not given for payment by the judge, and partly because I had not documented the amount... I was a little displaced at the time...

 

Initial response, that an appeal may not be the best course of action, but Report it ti OFT to get the ball rolling should you decide to claim for misleading sale.

 

They charged me nadda... and even paid for lunch... I was actually for the first time very humbled at their generosity and kindness... the world aint that bad after all.

 

So I will wait for the judgement to see what comes... and I will of course keep you all posted.

 

I have thought of putting all my fights up here, were it not that my fingers would wear to the knuckles...

[I've got no money]

At least you're getting some advice and will hopefully get something sorted - let us know what happens and if anyone can help they will.

 

I'm sorry about the crap lawyer - I've come across a few in my time - but also across a few good ones...at least it sounds like you're getting some decent help now.

 

It might help if you post some info on your other cases - you may get some useful help/advice

[Shidoshi]

Just to keep you all posted.

 

Got a phone call from the OFT who have asked for a copy of all the documents.

 

Awaiting for the written confirmation of the judgement before I send all the documents forward.

 

Will keep the threat updated.

 

Still working on the rap album!

[Shidoshi]

Interesting...

 

Spoke to the courts Civil Listings Section... they have "judgement set aside" as the last entry against the claim number...

 

I've been informed there's a massive back log and may well be next week when I receive the order.

 

Appeal dates start from whence one physically receives the order, and you have fourteen days to appeal the judgement.

 

I guess I can wait a little longer...

 

(Pulls out a HUBBA BUBBA and loudly chops away staring at his screen... hoping it'll speed things up!)

[Shidoshi]

The story continues...

 

I spoke with OFT and they contacted me for a copy of the paperwork

 

I hadn't received the last judgement so I waited till I did.

 

On the 26th June 2008, I received the judgement and posted the whole case to the OFT... post marked 25th.

 

I spoke with the OFT on Friday who asked for a transcript of the final judgement. They said it may not be in your interest to appeal, but you might have a claim under contract law. however, they need the judgement transcript. This costs i take it.

 

They will however pass it on to have their CCL investigated.

 

Tuesday 30th, got a letter from the Solicitors saying they've put in a stat demand on the 29th June...

 

Today (9th July), got served my Stat Demand...

 

• I understand I have until tomorrow should I wish to appeal the judgement.
   
  
• I understand I have 18 days from today to appeal the Stat Demand.
   
  
• I understand I have 21 days to come up with the money.
  

 

What it doesn't say is what would happen if I simply can't pay and don't have the money?!?

 

Does anyone here know... please?

 

I'm freaking out a little...

[Sirensinger]

Sorry, don't know if this should be a new thread or what, my head is all over the place, sorry if I'm hijacking but can't find where I should post this .... re production of CCAs, has anybody got case details where the judge has found for the Defendant, ie the one one saying the CCA should have been produced and hasnt been? Am fighting on these grounds, HSBC solicitors, DG, sent me a letter last year after I requested a CCA, saying 'because this account is closed, there is no longer a live agreement in place under which the bank can be seen as a creditor .... sections 77 - 78 don't apply'. I messed up in giving them my new address, and they took me to court in my absence, got CCJs against me, now Interim Charges on house. I'm trying to fight on grounds of no CCA, and it's been adjourned. Please, please if anyone has examples where Set Aside has been granted on these grounds, post them so I can use them at the next hearing.

 

Yours in hope

 

Sirensinger

[Shidoshi]

Seems I can set the Stat Demand Aside because they owe me some costs from the previous claim which they have not paid and have been disputing?

 

http://www.consumeractiongroup.co.uk/forum/mbna/127923-mbna-1st-credit-connaught.html

 

I'm sure that'll wind them up...