First plus loan for everest windows and a charging order - can i now Cca?

[MAGDA]

I think it is definitely worth a shot exasp, as always, it will depend on the judge you get for the hearing, but they shouldn't have obtained the judgement as easily as they did because you do have valid points to defend on. Also 42man's point is something to look into as well.

 

Magda

[42man]

Extortionate Credit

[42man]

I think sections 19-22 replace sections 137-140 of the Consumer Credit Act....

[paulwlton]

Contractual Interest

 

Many creditors are trying to argue that Charging Orders carry contractual interest after judgment even if the judgment itself doesn’t. There are plenty of arguments against this.

 

• Charging orders and their effect are determined by the Charging Order Act 1979

• Section 1 COA says that a Charging Order is made ‘for the purposes of enforcing that judgment or order’ and that the charge is for ‘securing the payment of any money due or to become due under a judgment or order’. Although enforcement of a Charging Order is not execution of a judgment, s1 means that the order and the judgment must be coextensive. Therefore no money can be recovered in excess of what is due or to become due under the judgment.

• Section 3(4) opens with the words ‘Subject to the provisions of this ACT…’ and so unless the interest is due under the judgment or order under the Interest on County Court Judgments Order, it cannot be included in the Charging Order

• The amount of interest depends on the amount of interest due on the judgment. Most CCA regulated agreement judgments do not have an interest post-judgment clause.

• Even if there is an interest post-judgment clause on a CCA regulated agreement the lender still cannot enforce these rights by levying contractual interest – unless that rate forms part of the judgment, the lender would have to bring separate action for the interest. (Supreme Court Practice 1999 Ed. Para 42/1/24 and Re European Central Railway 1877 4 Ch.D.33

• The claimant may try to use s3(4) COA to claim that an equitable charge attracts interest on the principle sum. However, the rate of interest payable under an equitable charge depends on its terms. In the case of a CO, the judgment debt would be in essence the principle sum. The rate payable on this sum is prescribed by statute or set out in the judgment. S3(4) wouldn’t justify applying a different rate.

[exasperated]

Hi All,

Thanks for your help

Here is my raw defence it will need more input.....please let me know what you think and if anyone knows case law on points 2 & 4 that would be helpful.

 

Box 3

 

An order (a draft of which is attached) that the order made by [insert name of judge/master/district judge] dated [insert date of the order] be set aside because default judgment was entered by request of the Claimant on [date] notwithstanding that the claimant did not issue a valid default notice or comply with section 127(4) both of which are required to comply with the Consumer Credit Act 1974 of which the agreement between the defendant and claimant is regualted. The Defendant requests that the court set aside the default judgment pursuant to 13.3 CPR. as the defendant has a real prospect of defending this action

 

draft order

 

IN THE XXXXXXXX COUNTY COURT

 

 

Claim No:

 

 

 

BETWEEN:

 

 

 

 

[ ]

 

 

 

 

 

 

Claimant

 

 

 

and

 

 

 

 

 

 

[ ]

 

 

 

 

 

Defendant

 

 

 

draft/ORDER

 

 

 

 

UPON reading the Defendant’s application notice dated […]

 

 

IT IS ORDERED THAT:

 

 

• The judgment in default dated [ ] on the request of the Claimant dated [ ] be set aside.
  
• The Claimant do pay the Defendant’s costs of the application, to be assessed by the court.
  
• The Defendant do file and serve his Defence to the claim by no later than [ ].
  
• The Claimant do have permission to file and serve a Reply by [ ].
  

Box 10

 

the defendant respectfully asks that the court set aside judgment entered by default on xx/xx/ 2008 at XXXXXX County Court before District Judge XXXXXXXX

 

The defendant being a layman and litigant in person and without the knowledge or assistance of legal advice while under a Debt management plan tried to negotiate with the claimant albeit in error and ignorance of the court procedures, however judgment was entered at the request of the claimant. the defendant upon receiving guidance on his case believes that there is a good prospect of success in defending the action for the following reasons

 

(1) The claimant did not issue a valid Default notice as required to do so under the Consumer Credit Act 1974. Failure of a Default or Termination Notice to be accurate not only invalidates such Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ), but is an unlawful rescission of contract which would prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147)

 

2) Under Section 127(4) of the CCA 1974, the court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

 

a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer, or

(b) section 64(1) was not complied with.

 

 

3) Extortionate credit where the claimant claims that despite payments from 24.11.2002 - 24.03.2007 of £6360 and further payments from 24.04.2007- 24.11.09 of £496 the claimant states the amount outstanding as £11,759.63. This totals £18,615.00 from an original loan of £6,040 in a period of less than 7 years which the defendant would ask the court to consider as extortionate credit.

Castle Phillips & Co -v- Wilkinson and Wilkinson (1992) CCLR 83, where the lender, through brokers, provided a bridging loan of £21,000 for a period of between 4 and 6 months at 4% per month. It was held that the credit bargain was clearly extortionate because the interest rate was 3.33 times what a building society would charge, the security provided exceeded the nominal amount advanced, the borrowers were of little financial understanding, and had been persuaded to enter into an agreement which in normal circumstances they would not have entered into. The Court substituted a rate of 20% per annum, being the current building society re-mortgage rate plus one third to reflect the short-term nature of the loan.

 

4) With regards to your interest being added post judgement our interpretation of the judgement where "with any interest due" is a reference to contractual interest. The judgment doesn't state statutory interest. Therefore, the agreement must include a contractual PJI clause which the claimants agreement does not making the original judgement inaccurate in its wording

Edited November 11, 2009 by exasperated

[MAGDA]

Hi Exasp, that looks fine to me, although hopefully someone with better legal knowledge than me will have a look and give it the once over as well just to be sure.

 

Re: point 2 concerning cancellation rights I would just clarify by adding the following:

 

Under Section 127(4) of the CCA 1974, the court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer, or

(b) section 64(1) was not complied with.

 

Good luck with this, hope it all works out for you.

 

Magda

[exasperated]

Magda,

Changed that as instructed, I will wait to see if I get any other comments before submitting the form

Exasp

[MAGDA]

Yes, hopefully 42man and some others will comment - always best to get as many opinions as you can to be on the safe side.

 

Good luck with it.

 

Magda

[exasperated]

Hi,

Anyone else got any comments re my set aside as above

Thanks

Exasp

[exasperated]

Sorry to keep bumping this but I need to submit my set aside asap

Thanks

Exasp

[exasperated]

I understand this be retrospective but it is important to state that the judge in this hearing granted the CO without ever having had sight of the CCA.

He therefore had no understanding of consumer law, which I did not before joining CAG. Therefore he had as much right to sit and judge this case as I did.

Any thoughts on my set aside are greatly appreciated

Exasp

[MAGDA]

Exasp, have you tried pm'ing someone, and asking them to look at your thread. Might be worth a shot.

 

Magda

[Craftygirl42]

Exasperated if you click the red triangle under your name, then someone from the site team will come along and look at your thread.

[exasperated]

Thanks CG,

I'll give it a go

Exasp

[supasnooper]

It is up to a Judge as to whether he will grant the set aside of your CCJ for the reasons you have given.

 

Have you done a Subject Access Request to Everest to try to flush out the Agreement ?

 

If you haven't this may set you back 6 weeks.

 

You may wish to do a web search on the Francovich principle, which may persuade a Judge to listen to what you have to say.

 

I'd also have a read of the attachment as well.

Set aside procedure Southern_&_District_Finance_plc_v Turner_-_[.pdf

Edited November 19, 2009 by supasnooper

[42man]

It seems ok to me Exasp....did you SAR Everest ? - you've got some case history too, might like to incorporate some or all of this also.... -

 

The Defendant denies that the Claimant is entitled to recover interest at a rate of XXX per annum on unpaid sums due for the price of goods supplied by the Claimant to the Defendant. It is denied that such a rate of interest represents a reasonably accurate assessment of the loss sustained by the Claimant by reason of late payment. The Defendant avers the rate of interest is penal and unenforceable at law.

 

Incorporated within the sum claimed by the Claimant are sums claimed for administration fees, debt management charges and other like charges. It is denied that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment. The Defendant avers the incorporation of such claims is penal and unenforceable at law.

Edited November 19, 2009 by 42man

[letitbeme]

Hi there exasperated,

Have read your thread, just a question, did you receive court papers and just ignored them, or did you not receive them ?

Hence the CCJ by default!

[exasperated]

Hi letitbeme,

The CCJ I did not defend, the charging order I did.

Exasp

[exasperated]

It is up to a Judge as to whether he will grant the set aside of your CCJ for the reasons you have given.

 

Have you done a Subject Access Request to Everest to try to flush out the Agreement ?

 

If you haven't this may set you back 6 weeks.

 

You may wish to do a web search on the Francovich principle, which may persuade a Judge to listen to what you have to say.

 

I'd also have a read of the attachment as well.

Hi Snoops,

Hope you are well and thanks for replying. Yes I have the agreement and apparently it is enfoeceable confirmed by yourself and Martin. It is though windows supplied by everest and the finance supplied by First Plus.

Would the fact that at the CO hearing and the CCJ hearing the claimant did not provide a CCA

Exasp

[exasperated]

It seems ok to me Exasp....did you SAR Everest ? - you've got some case history too, might like to incorporate some or all of this also.... -

 

The Defendant denies that the Claimant is entitled to recover interest at a rate of XXX per annum on unpaid sums due for the price of goods supplied by the Claimant to the Defendant. It is denied that such a rate of interest represents a reasonably accurate assessment of the loss sustained by the Claimant by reason of late payment. The Defendant avers the rate of interest is penal and unenforceable at law.

 

Incorporated within the sum claimed by the Claimant are sums claimed for administration fees, debt management charges and other like charges. It is denied that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment. The Defendant avers the incorporation of such claims is penal and unenforceable at law.

Hi 42,

I will add this in and post for your consideration when snoops has answered a question I posed to her.

Thanks 42

Exasp

[exasperated]

Just an observation here - why would the judge ask someone if they "owed the debt" if a signed agreement is in front of him/her?

My instinctive response would be that I "dont know" if to do nothing more than to force the court into investigating the agreement further. Especially in light of the Ops statement of how the judge shut that side of the arguement down quickly.

Could there be something wrong with the agreement and the judge has simply side-tracked this?

Merlin,

I answered this question originally incorrectly as the judge did not have the agreement in front of him neither did the CCJ judge both granted without ever having a view of this agreement. It is a fact that a enforceable agreement has been produced since but this is not the point. It goes to show that ignorant poeple like myself were of the opinion that a judge would be the most informed person in the court room.

How wrong is that assumption

Exasp

[supasnooper]

I would advise that you research the advice given as it will be you who needs to present your case to a Judge.

Never presume that a Judge will know the details of your case or indeed Consumer Law....for all you know they could deal in Family Law.

It may even be the case that your Judge has not even read your application when you walk into their office !

 

The claimant, under Civil Procedure Rule Practice Direction 16.7.3 should bring the Original Agreement to the CCJ hearing.

 

However, once Judgment has been passed, the claimant is under no obligation to show the Agreement, even at a Charging Order hearing.