sj - lost! but battle still continues?

[kel123]

Just a little light reading LOL

 

Someone please tell me where I went wrong

[Baggio]

is this or is this not a glowing example of why a CMC with a decent track record should be used?

 

we are not trained solicitors who have the ear of a top consumer law barrister in compiling a defence on proper legal grounds with a sound knowledge of the intricate details of said legalities.

 

we need to accept CMCs.

 

otherwise... more LIP will get shafted and more banks will get the upper hand.

[Dorabell]

Sorry kel to here about your court case:sad: i lost mine a few weeks ago it is so terrible when it happens after all the hard work and help that has gone into preparing for it i thought mine was going really well, then the judge rewarded the other side:mad: i wish you luck in what you do:)

[kel123]

OK guys I need to start doing something constructive towards this situation:

 

1) counterclaim - what form do I use

2) basically all the information is in the posts above (I will post the DN)

(a) miss-sold PPI - case law needed etc

(b) DN - case law needed etc

3) How to appeal against these rulings - How do I get a transcript of the hearing

 

Your input is extremely welcome

 

Kel

[Docman]

kel

 

I am also sorry like Dorabell over what has happened to you. I also can see the point that Baggio is making about caggers not being trained solicitors but I don't agree about the need for CMCs. The point is one that surfaceagent X20 made about 12 months ago in one of his/her first posts. That is caggers not knowing about the law or the procedure of the court put forward 'defences', witness statements and 'skeleton agruments' that have been used in other cases without either understanding the words or tailoring them to their own case. The result is a document that reads as though it has everything but the kitchen sink included in the hope that the reader will understand. It's like the student who writes solidly for 3 hours in an exam and then fails because his words, whilst being correct, do not answer the question that has been set on the exam paper.

 

Your 'reader' is the District Judge. You may say he is paid to read and consider the points put to him. Quite true but the reality is that the District Judge will have several cases to hear in a day on quite diverse areas of law, some of which he will not be familiar with. When he comes to your case, he will see several pages of reading which a brief glance will tell him that most of the words have been copied from other cases over the internet and don't easily tie in with the case unless he, the judge, wades through the pages and tries to pull out what it is the defendant ie you, is trying to make. That will take time that frankly he hasn't got. On the other hand, he has a 'solicitor' or other form of lawyer representing the claimant who knows the ropes, says the correct words, and generally makes life easy for the judge. Which way is the judge, human being that he or she is, going to favour?

 

Having read your posts above, and I say this with the greatest respect, and without wanting to be cruel in any way, that if I had been the judge, I would have given summary judgment to the claimant totally, ie without any chance of filing an amended defence. I would not have considered the points of law that I should have done. I simply would have seen on one side your defence of pages of documents that would take a long time for me to make sense of, and on the other side a claimant who was saying 'we have ticked all the boxes, sir, so you don't have to be bothered'.

 

The fact that you have apparently had the Court's Order already indicates to me that you were in a smaller county court, since the larger ones couldn't issue an Order on the same day it was pronounced. A smaller court tends to mean a District Judge who is almost a law unto themselves. (That may be a generality but it is one from my experience in dealing with county courts in the North West of England since the 1970's).

 

OK, end of my rant for this morning. Let's get down to business. Kel, you have the opportunity of filing an amended defence. I would like to read your defence and witness statement in more detail (as the judge should have doe) and then make some suggestions. One thing, I see the judge has ruled against you on the 'agreement' bu can you post up a copy of the 'agreement' that you supposedly signed without your personal details?

[kel123]

No offence taken Docman

 

The judge spent time reading through (about 30min) so the usher said. Also I think I heard the usher say he is now talking to another judge. This DJ is about 18 months in the job. I am not in the north west just the west .

 

Will do!

Edited November 5, 2009 by kel123
deleted something of interest

[kel123]

Hope i've got this correct

 

http://i278.photobucket.com/albums/kk81/123kel123/Lloyds/cca9-04-082B.jpg

[Baggio]

well said, docman

 

you make some very valid points with your last post.

[supasnooper]

Hope i've got this correct

 

http://i278.photobucket.com/albums/kk81/123kel123/Lloyds/cca9-04-082B.jpg

 

 

The prescribed terms for a credit card are

 

A. Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

B. Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

 

C. Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

 

 

I cannot see A and I'm not really sure if B is complied with, as the interest rates quoted are "typical"..................so, IMHO I think it is unenforceable.

[kel123]

Hi supasnooper

 

A & B are in the terms and conditions, purportedly on the back of the agreement?????

 

But I can not go there! see post 21 (this is not a typed copy but a copy of the hand writen order signed by the judge) or can I?

[middenmess]

Docman-excellant post which should be mandatory reading for those who have to go to court.

 

With any argument there is a huge gulf between knowing you are in the right and being able to prove you are right using justified reasoning presented in a concise manner that leaves no area of doubt to an independent and unbiased adjudicator.

 

You also have to be confidant in presenting your argument and fully conversant and knowledgeable in what you present with referenced precedents and rulings if necessary.

 

Unfortunately even being all of the above doesn't factor in the appointment of a Judge who has knowledge in depth of consumer law.

Edited November 5, 2009 by middenmess
spelling

[kel123]

Middenmess how do you compensate for a dj with no or little knowledge of consumer law and who brushes things aside by saying I would have to read it

 

1) he is addmitting he's incapeable of judging the case in a fair or measured capacity or

2) he already knows it but chooses to ignor it because he cannot go against it

 

I do not know which one applies to my case, But remember what I said earlier When I presented him with a legal precedant LJ Turkey he just said I would have to read it (so why the **** didn't he, or am I expecting too much common sense here)

[patrickq1]

it was not so long ago a case was won on this basis so i think lilly has hit the nail on the head and you need to re introduce this into your defence poc...i will find the case and post it on here for you kel

 

 

61. The Prescribed Terms are contained in schedule 6 Column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are as follows:

 

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the Agreement and a term stating how the Debtor is to discharge his obligations under the Agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

 

Number of repayments;

Amount of repayments;

Frequency and timing of repayments;

Dates of repayments;

The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

62. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the Agreement, then the Court is precluded from enforcing the Agreement. The Prescribed Terms must be within the Agreement for it to be compliant with Section 60(1) Consumer Credit Act 1974. In addition, there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the Agreement and not in a separate document.

[kel123]

Hi Patrick1

 

I am not disputing the validity of what you and supersnooper have said, but the judge has already ordaned that the credit agreement conforms to s61. I get the feeling (from mr dJ) that I will be in big doodoo if I bring anything todo with s61 again! And remember the DJ acepted (in his words - balance of probability) that the t & c were a true copy of the reverse of the credit agreement, raising the arguement that it is within one document and it a 1 in 5 probability that I will get him again.

[JonCris]

Google the Francovitch judgement

 

This places a strict duty upon ALL courts within the EU to examine ALL aspects of the claim including the documents CCA for any shortcomings which might invalidate the claim. In the case of a consumer and particularly a LiP the court should not just confine itself to those points raised at trial & why more litigants aren't using it is a mystery

[middenmess]

Hi Kel

 

If you read around the forums you will find a number of other cases lost by caggers because of the lack of knowledge by the Judge on the exactitudes of the Consumer Credit Act.

 

Most of these threads have received advice as to how to proceed which might be helpful to you.

 

Going by what you have reported about the ''trial'' I'd be inclined to obtain the transcript which should provide you with some ammunition when preparing your next move.

 

I'm not sure but I think its a bit on the expensive side but others will no doubt be able to tell you how much and if it would be of benefit to you.

[Docman]

Hi kel

I’ve got home now and read through the threads now. .

It looks like the claim was started online through Northampton County Court (the Bulk Centre used by many solicitors). You must have filed a defence and then the case gets transferred to your local county court where you went yesterday. Claimants do not have to attach a copy of the agreement when using Northampton although they should still be able to produce one if challenged. Once the case is transferred, claimant and defendant complete ‘Allocation Questionnaires [AQs]. Quite often at this point, solicitors apply for summary judgment, especially if they don’t have an enforceable credit agreement. As the defendant, you can respond to the SJ application, usually by submitting a witness statement rubbishing the application and (usually) brief POCs. A hearing is held and the solicitor tries to rush the process, ignoring the lack of documents in the hope that the judge doesn’t know what should be there or is looking for a quick solution himself to clear his schedule.

It looks you have thrown everything into the case and made your side of the argument about as twice as long as the maximum allowed. For example, if you file a defence there is a limit of 8,000 characters. The standard ‘defence’ I have seen on CAG runs to over 13,000 characters. With your ‘witness statement’ and ‘defence’ you run to over 17,500 characters, only about 25% is relevant. I also think that your documents are the wrong way around in that your ‘witness statement’ reads like your defence to the claim and your ‘defence’ seems to be a witness statement in response to a summary judgment application by the claimant.

Now, let’s look at the Order from the Court. Although the judge may have said ‘You’ve lost’, his Order doesn’t actually mean what you think it does. Yes you lost on two points – (1) that the CCA wasn’t valid because it wasn’t signed by Lloyds TSB and (2) Lloyds TSB couldn’t bring the case because they hadn’t responded to your S78 request. The rest of the Order is basically putting everything back to square one and giving you the chance to start again.

You could appeal against the decision part (i.e. paragraphs 1 (a) and 1 (b)) but I suggest you do not. First, the judge ruled against you on the CCA because it was ‘signed’ NOT that it didn’t contain the prescribed terms. IMO, it is open to you to challenge the CCA on the grounds that the prescribed terms that Supasnooper and patrickq1outlined above are not within the four corners of the agreement presented in evidence. Second, LloydsTSB have produced something and can then argue that the details in the regulations permit them to supply a CCA in the way they do. Third, appealing a Judge’s decision will always irritate a judge - and if you have to go before the same judge to rule on linked matters, you just make the situation more difficult. Take what has happened on the chin and move might be the best course right now.

I’ll have a go at drafting an amended defence but it might be in the morning before I can post it up. One small point, there is reference to Terms & Conditions. Can you post up the copy that was put in evidence?

[middenmess]

Google the Francovitch judgement

 

This places a strict duty upon ALL courts within the EU to examine ALL aspects of the claim including the documents CCA for any shortcomings which might invalidate the claim. In the case of a consumer and particularly a LiP the court should not just confine itself to those points raised at trial & why more litigants aren't using it is a mystery

 

Just looked briefly at the Francovich judgement which is not easy for me as an ordinary member of Joe Public to understand or how it could be used by caggers.

 

It seems primarily about ''the interpretation of the third paragraph of Article 189 of the EEC Treaty and Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of the employer (Official Journal 1980 L 283, p. 23).''

 

Sorry to be dense but can you explain it in layman's terms please?

[patrickq1]

Hi Patrick1

 

I am not disputing the validity of what you and supersnooper have said, but the judge has already ordaned that the credit agreement conforms to s61. I get the feeling (from mr dJ) that I will be in big doodoo if I bring anything todo with s61 again! And remember the DJ acepted (in his words - balance of probability) that the t & c were a true copy of the reverse of the credit agreement, raising the arguement that it is within one document and it a 1 in 5 probability that I will get him again.

 

 

AS JON HAS POINTED OUT KEL OOPS CAPITOLS ,

you deserve better and as for sec 61 it is relevant to the case the judge in his wisdom thinks he can decide without understanding anything because he is bigger than you....

the balance of probabilities is they do not have an origional aggreement and have a concocted peice of crap saying that this is the aggreement ,without you being able to see the true copy ,hand him a true copy of what you think the aggreement s and that would be a peice of paper saying i owe nothing upon termination of my account ,,on the balance of probabilities the judge has erred in dis deccision if you read the thread and case of

as jon points out ....House of Lords - Autologic Holdings plc and others (Respondents) etc. v. Her Majesty's Commissioners of Inland Revenue (Appellants)

will come back to this thread hopefully john can help more and a few other to help prepare you with a and the correct procedures

also read this case it should help...

Bank of Scotland v Mitchell case in the Leeds County Court.

[kel123]

JonCris

 

From what you are saying is that this directive (which needs to be clarified that it effects us, being semi outsiders) says that the judge had a duty to investigate what I had raised - further grounds for appeal then?

[patrickq1]

you got it in one kel you were denied a fair hearing

[patrickq1]

62. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the Agreement, then the Court is precluded from enforcing the Agreement. The Prescribed Terms must be within the Agreement for it to be compliant with Section 60(1) Consumer Credit Act 1974. In addition, there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the Agreement and not in a separate document.

[patrickq1]

good to see also docman on here i can leave now get back to me sickbed cheers guys...oops n galsl...lol

[lilly white]

ok have a read

 

i have stolen this from another tread however i used somthing like this before. put in lay mans terms i just denied everthing it works.

 

the point is keep it simple

 

have a read.

 

1. It is denied that the matters pleaded in the Particulars of Claim actually disclose any cause of action. In particular:-

 

 

a) It is denied that that the Defendant can have liability to "pay" the Claimant sums of money simply on account of "requests for payment" in relation to a credit card- the only matters pleaded.

 

 

No cause of action known to English Law exists on the basis of such "requests for payment" (whether repeated or not).

 

 

 

b) Neither the Claimant being xxxxxxx which it appears (on the face of the Particulars, although due to their vagueness it is hard to know) to be being alleged were due

 

 

c) In any event, it is denied that the Defendant has or ever has had liability to pay - whomever that may be - any sum whatsoever.

 

2. It is expressly denied the Defendant is liable to pay any money pursuant to contract or otherwise to the Claimant.

 

3. Without prejudice to the above contentions, the Defendant asserts that in particular, given that the original of the liability is said to be a credit card given by " egg (which is a person / entity / company not known to the Defendant), it will be the case, taking into account the amount of the liability, that the transaction and the underlying agreement (if any) between egg credit card and the Claimant would be regulated by the terms of the Consumer Credit Act 1974.

 

4. It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement - that any such agreement as exists does not comply with the Act. It is impossible to plead further in the absence of a pleading by the Claimant as to what the agreement was and what its terms were and the Defendant reserves the right further to plead Particulars of failure to comply in the event that the Claimant amends it Particulars of Claim to allege the agreeme

[kel123]

Thanks Peeps

 

Docman no rush, I will be about at some points tonight but I will not be on till early evening tomorrow. I agree with you about the appeal. It will take me awhile to post up both t & c, the duff one (as if both wasn't duff) and the 16 paged reproduction?!?