Cabot financila (Vanquis CC) court summons is it too late to use CCA 1974?

[Hadituptohere]

I agree with pt appeal, im sure youll have all the backing of the members of CAG.

 

Hadituptohere

[hunni2006]

I just don't have the money to do that.

Edited May 22, 2010 by hunni2006

[pt2537]

then you simply in my opinion, add to the strength of the debt purchasers as your judgment will be used against others by Cabot

 

Sorry to say but its true

[Hadituptohere]

I dont know what costs would be incurred in an appeal, im sure that others will be along to answer that soon, and im sure that costs will be awarded when you turn this terrible decission around

[pt2537]

costs can vary to be honest,

 

Are you fee Exempt?

 

If you are then you simply complete the necessary EX160 AFAIK and then its the appellants notice and skele argument you need to get drafted

 

as i said the costs vary

[pt2537]

and the judge got it wrong on the assignment issue, Atkinson J in the case of Holt v Heatherfield Trust Ltd and G & T Bridgewater Ltd made it very clear that A legal assignment of a chose in action is only complete upon notice being given to the debtor.

[middenmess]

It would appear that most posters on CAG have a sounder legal knowledge of the 1974 CCA than this misinformed Judge whose fitness to continue to sit on the bench must be called into question when making decisions like these.

 

Appalling result and as others have said you must appeal otherwise many hundreds,if not many thousands of other people will suffer extreme injustice when defending similar cases.

[pt2537]

problem faced by many is while they can read on the CAG, they go into court and face skilled counsel who is able to take people off the rehearsed track on the CAG.

 

I had Counsel try to catch me off guard in my early days and luckily i knew the case he referred to very well, it was manni investments v eagle star and he tried to argue that if the notice was deficient then the could should still allow the notice to stand as a good notice, which of course it wasnt

 

a week later, same case same facts but the result was very very differnt im afraid as the litigant in person lost due to the same case.

[middenmess]

problem faced by many is while they can read on the CAG, they go into court and face skilled counsel who is able to take people off the rehearsed track on the CAG

 

Very true--it's one thing to know that you are right but up against a professional and very skilled wordsmith making your point is often near impossible--we can talk the talk out of the court room setting but we are often unable to walk the walk when there.

[Hadituptohere]

wouldnt the appeal judge be more savy on CCA and the relevant case law?

 

Hadituptohere

[underdog13]

So sorry to hear about your bad result, Hunni. Hope you will appeal.

[DonkeyB]

Please appeal!

 

Yet another judge misdirects himself and makes himself a judge of morals rather than facts.

[alangee]

Pt

 

It is not always Counsel that try to catch you off guard. I have had two experiences of the DJ doing it to me, and taking me off on a tangent to the points I was trying to make, and refusing to let me get back to them.

 

Alan

[caro]

Hi Hunni I'm so sorry to hear this. I know you would have employed legal counsel, but like many caggers that just wasn't an option for you which is why you went down this route as LIP. Having spent 5 hours in court you clearly put up a good fight, as you always do so you can hold your head high.

 

You're one very gutsy lady and I admire the way you've persevered through this and everything else that you and your family have had to deal with.

 

PT, I've noticed several references to Crutchley v Go Debt and spent time looking for it the night before Hunni's case both on and off the site including PMing other caggers who mentioned it but to no avail. You mention that it can be obtained from the Law Society so would it then be acceptable to keep it in the CAG library for the benefit of everyone do you think?

Edited May 22, 2010 by caro

[vjohn82]

What a shocking decision!

 

Am I right in thinking that the judgment handed down will probably be used by Cabot against others but it is not as persuasive as High Court judgments?

 

Despite this, you should be appealing. You might be able to apply for a fee remission... I did this and paid no fees whatsoever.

 

Do I have to pay court fees ?

 

You may not have to pay a court fee if:

 

a) You are on Income Support, or

 

b) Working Tax Credit, where child tax credit is being paid or there is a disability or severe disability element and the gross annual income taken into account for the calculation of working tax credit is £15,450 or less, or

 

c) Income based Jobseekers Allowance, or

 

d) Guarantee credit under the State Pension Credit Act 2002, or

 

e) Payment of a fee would cause hardship to you.

 

f) You are in receipt of "Legal Help" from a solicitor, or

 

g) You are in receipt of a "funding certificate" from the Legal Services Commission. You must complete court form "Ex160", (application for a fee exemption or remission) for each court fee you cannot pay for one of the above reasons.

 

You can also be exempted from the fee (or part of it) if you can show that the fee would cause you undue financial hardship (which, let's face it, applies to many people right now in the current economic climate).

 

If you are exempt from part of the fee... I'll throw in a tenner towards the rest and I think other CAGGERS might well do the same.

 

To let this judge rule against every higher decision before him would be a travesty!

[banker_rhymes_with]

Hello Hunni2006!

 

Obviously very sorry to hear this, but I agree with the others, you must Appeal this if you possibly can. Look on it as a two stage process to win, they just happened to win the first round of two, but will be going into the next round carrying a ball and chain around their ankles...

 

...that being the long list of strong Appeal points you outlined above, i.e.:

 

sorry to say, after a 5 hour court session, yet again Cabot won the battle. (didn't feel much like posting last night)

 

• the Judge seemed to see nothing wrong with the fact that they could not prove what date I had applied, and had in fact pleaded 2 different dates (neither of which was correct). Appeal!
  

 

• accepted their argument that there was no need for a default notice, that the amount was all arrears. Appeal!
  

 

• accepted their argument that they were not the 'creditor' but could still take action against me. Appeal!
  

 

• accepted the T&C as an executed agreement. Appeal!
  

 

• accepted a totally redacted deed of sale with NO identifying info related to the sale of My agreement. Appeal!
  

 

• accepted, that entry on a computer log is proof of production, posting and service of a notice of assignment... you don't have to receive it for it to be served. Appeal!
  

 

• accepted the totally fictitious letters that they said were sent by Vanquis... (giving details of the wrong date for me opening the account, very precise, even giving a time, but totally wrong and supposedly enclosing T&C's) even though I had the original letters that were really sent, ( offering me a refund of charges). Appeal!
  

 

• completely ignored the section 61a part signed by debtor and creditor and said the tick box electronic signature was enough for that.'otherwise every agreement signed online would be unexecuteable'

APPEAL! Please!

 

Cheers,

BRW

[Hadituptohere]

What a shocking decision!

 

 

 

If you are exempt from part of the fee... I'll throw in a tenner towards the rest and I think other CAGGERS might well do the same.

 

 

Id be up for this too, am sure it was done before where someone ws taking the CRA's to court.

 

Hadituptohere

[rhodium78]

The "learned" Judge erred on several points of law and hence an appeal should be initiated IMO. I understand if you don't want to as losing a case can be demoralising. This is a quick note down of various points that you can raise but I am sure there are others...

Default Notice

Default Notice required because s 87(1)(d) states that a DN is to be serviced:

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

By restricting the lending or terminating the right of the debtor to have access to the facilities by reducing the credit limit to £0, that comes under the auspices of s 87(1)(d) and hence the service of a DN is required.

Contracting Out

There are really two types of "credit cards":

1.) a card where the debt accrued that month is payable immediately that month without instalments and is not meant to have an instalment facility.

2.) a card where the debt accrued in that month and/or previous months are payable via instalments.

The first type of card does not fall under CCA 1974 and is a charge or "t&e" card. An example is Diners card, the second does fall within CCA and is Mastercard or Visa.

By changing the credit card limit from £xxxx to £0, the Creditor is, by virtue of its action attempting to change the card from one regulated by CCA to one that is not. And in doing so, they are trying to bypass the statutory notices required such as a DN for arrears and for other actions required as they are now stating that the whole balance is in arrears.

They are trying to make the credit card a non-instalment agreement for running-account credit which will normally constitute an exempt agreement under the Consumer Credit (Exempt Agreements) Order 1989, art 3(1)(a)(ii) and fall outside the Consumer Credit Act 1974

Hence it is my understanding by virtue of their action sthat the Claimants are contracting out contrary to s 173 of CCA.

Unfair Relationships

By virtue of s 140A(1)(b) of CCA 1974, the Creditor has acted unfairly in:

“the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement”

By reducing the credit limit from £xxxx to £0, the debtor is now liable immediately not only for arrears missed but also for exceeding their credit limit hence incurring a new round of charges and by, a stroke of the pen, increase their arrears to 100 times what it would have been (assuming that the debt is £5000 and that the minimum payment is £25 and that two arrears are missed - very simplistic assumption but you get the point).

 

That should be the start of your skele and application for appeal if you do decide to go down this route. It is not binding on any other Court and they may state it is persuasive but seeing that IMO, there were several flaws in the judgement, it can easily be sidelined.

 

Unfortunately as a LiP, you are vulnerable and hence it is best to know not only your case but also the opposing counsel's case too so you can refute it and any related legislation.

[caro]

Unfortunately as a LiP, you are vulnerable and hence it is best to know not only your case but also the opposing counsel's case too so you can refute it and any related legislation.

 

Might have been easier if Hunni had received the skeleton argument earlier than the day before the hearing.

 

Still onwards and upwards.

 

I expect it will take a day or 2 to lick your wounds Hunni, but I hope that you'll seriously consider appealing.

[pt2537]

Hi Hunni I'm so sorry to hear this. I know you would have employed legal counsel, but like many caggers that just wasn't an option for you which is why you went down this route as LIP. Having spent 5 hours in court you clearly put up a good fight, as you always do so you can hold your head high.

 

You're one very gutsy lady and I admire the way you've persevered through this and everything else that you and your family have had to deal with.

 

PT, I've noticed several references to Crutchley v Go Debt and spent time looking for it the night before Hunni's case both on and off the site including PMing other caggers who mentioned it but to no avail. You mention that it can be obtained from the Law Society so would it then be acceptable to keep it in the CAG library for the benefit of everyone do you think?

 

It is a High Court case, so it would be a precedent

 

I understand it is available from the law soc library BUT it costs money to get it

 

i believe its between 20-30 pounds to get the case, but dont quote me as its a while since i needed to obtain a case from there

[vjohn82]

If the significance of the Go Debt case is important I am willing to purchase it if someone can tell me what the main thrust of the case is.

 

I'm sure if it is useful for me then it will be a worthwhile investment.

[caro]

Thanks for the response PT. I've seen a number of references but no detail so that's helpful.

 

EDIT.

 

Just checked Law Society site and the library is not accessible for us plebs it seems.

 

The Law Society Library is a private library for solicitor members of the Law Society of England and Wales. In order to use the library, you will need to provide evidence that you are a member, or employed by a member.

[hunni2006]

and the judge got it wrong on the assignment issue, Atkinson J in the case of Holt v Heatherfield Trust Ltd and G & T Bridgewater Ltd made it very clear that A legal assignment of a chose in action is only complete upon notice being given to the debtor.

 

You may appeal against a judgment in the small claims track only if the court made a mistake in law or there was a serious irregularity in the proceedings.

 

I'm going to wait for the judgement to arrive, then I will post it up and see where to go from there.

 

I found the whole hearing on Friday annoying, frustrating and ultimately soul destroying.... I blame myself as much as anyone else. I was so nervous and short of confidence that I took a Mckenzie friend, a retired solicitor with me who clearly hadn't listened to a word I had said over the last 2 months, and pretty much made a real fluff of it. when it came to the crunch, I think I would have done better myself... so it's pretty much my own damn fault.

[Hadituptohere]

Does the buddy system still work on the site? maybe theres someone willing to help from the site near you .

 

Hadituptohere

[Hadituptohere]

If the significance of the Go Debt case is important I am willing to purchase it if someone can tell me what the main thrust of the case is.

 

I'm sure if it is useful for me then it will be a worthwhile investment.

 

vjohn I was looking for a copy of this case to use in court against cabot, id be happy to contribute if someone with access to the Law society can purchase it

 

Hadituptohere