Anybody lost a DCA case and took it to the Court of Appeal?

[andyskiv]

Was in court against Robinson Way today. They had no Default Notice and their debt assignment was dated 10 June 2003 on a credit agreement that hadn't defaulted at the time (the Cahoot statements showed they actually sold it to a 3rd party in 2006!). The Cahoot agreement was a really poor copy.

 

But guess what? The Judge bought into their BS and defaulted against me. Im in shock! No DN, no executable agreement, no assignment - just based on their letter to me and the Cahoot statements!

 

Judge awarded the £13k to RW and gave me 3 weeks to stump up the cash. The claimants solicitor, DWF, specialise in Charging Orders on properties and want to do the same with me. I just feel they deliberately wasted years to sort this out and also took months and months to get any docs from them. It took them 12 months just to get some statements (and they kept them to themselves for 3 months before giving them to me).

 

I am really angry at the courts for falling for RW's devious practices. The court even ignored my pleas's that RW had broken so many OFT guidelines along the way (no surprised there).

 

Rant over.... Now looking into an appeal. I just got an idiot for a judge I guess.

 

Anybody had a similar situation where they had all acts/cases etc and the judge more or less ignored the defendant and awarded to RW despite a cr@p claim?

 

Anybody then gone on to the Court of Appeal to make sure justice was done?

 

Any guidance would be most welcome!

[harrassed senior]

Not sure of an answer but we have a local DJ who is a law unto his self and he has twice now ruled against me when I had a water tight case (not debt related). It appears from my investigations at the time that there was very little I can do to challenge so I was stuck with it.

 

Maybe you will have better luck from CAG members, I did not know of this site then.

[unclebulgaria67]

Surely you get a transcipt of what was said in court by both sides and the judge. If so wait to you get this and make a summary of the points from the beginning of the hearing to the end. Then add to a further post, so people can see what happened more clearly.

 

From what you have said, I am a bit surprised that the judge has glossed over, lack of documents from RW. They must have given an explanation for this, which the judge accepted. What explanations did they give ?

 

Once caggers have a bit more info, they might be able to comment.

[Deb T]

On what grounds did the judge award the judgement?

 

Who were RW collecting for as in Cahoot or had the debt allegedly been assigned to RW

 

Also, what court were you at or at least what area are of the UK are you from?

 

When you stated to the Judge that RW has broken guidelines etc did you take any written form or proof of your finding?

[ScarletPimpernel]

It sounds as if you got a Judge who doesn't like LIPs.

 

There are a couple of cases currently being taken to Appeal.

 

Did you have a chance to rebut the other side's arguments? Did you ask for leave to appeal?

[andyskiv]

Yes, she gave me 28 days to apply for an appeal. I'll get a transcript from the Court (I've found a transcriber too).

 

She seemed happy that the RW assignment from Abbey National (Cahoot) was OK to be an "Umbrella contract". The RW witness stated that the contract in June 2003 basically covers all the contracts post that date... even though there was a specific amount on that contract (and a tidy profit for RW of they recoup them all). This means they got away with just showing this 2003 contract without having to show the actual contract my old Cahoot loan was assigned to.

 

Had loads of OFT guidelines that I wanted to talk about but the Judge seemed more interested in breaking for lunch. All the details about RW not adhering to CPR we listened too but not taken on board.

 

It was the Ashford court in sunny Kent. Hopefully the appeal would be somewhere else.

 

Shame really as the judge I had at a hearing in December seemed to side with me as RW were, as we know, incompetent. However they said at that hearing that they admited they had little evidence could they have more time to get more... the judge said yes! So an extra 6 months for them, so 18 months to get docs they STILL don't have!

 

Will sort out a PDF of the key points of the transcript as it might be useful for those heading into court against these devious so and so's

 

Thanks for the help so far guys!

[ScarletPimpernel]

This was, presumably, a County Court case before a District Judge, so the Appeal will be heard by a High Court Judge.

 

Once you have the transcript, you should be able to identify your grounds for appeal.

[andyskiv]

Yes a DJ. Hopefully the next one will have a bit more common sense. I'm not going to let RW get away with this one...

[babybear39]

Subscribing...

[Seminole]

Subscribing...

 

Me too.

 

One thing the OP will need to check is the implication of an appeal for costs. I can't remember the position on this but I don't think appeals from the county court qualify for the small claims rules.

[rameses_qc]

I would say, though, that you should get some legal advice from a qualified practitioner. If you lose an appeal, you can be stuck with heavy costs.What would be the grounds of appeal?There are limited grounds egThe Judge was wrong about the law or misinterpreted itThe Judge didn't take all the evidence into account or misinterpreted Etc.And you will need to offer evidence of these

[Undercover-Elsa]

What a nightmare for you!

You might want to ask diddydicky to give some input on this..he's in that neck of the woods and has just won a very well argued case on a faulty dn/reconstructed agreement.

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-129.html#post2976147

Elsa x

[sillygirl1]

They may come unstuck with the charging order application as the latest government seem to want to stop these for debts under £25,000. If I were you I would also get your local MP involved alongside Trading Standards.

 

Something is wrong here and needs to be put right ASAP.... they should NOT have had 18 months to get documentation, that is a total abuse of court process.

[pmhcfc]

It is of my opinion that a lot of judges see these types of cases in the same light of the bank charges reclaims. That is to say, they don't want their courts in-undated and cluttered with these typed of cases- hence they rule against you which, in turn, discourages other people claiming in the same way.

 

I feel the judges think that if they awarded against the DCA then the floodgates would open from all and sundry.

 

It's wrong that you should lose your case when there is so much evidence against the DCA. Appears the DJ had already made their mind up before you even stepped into the courtroom.

[Deb T]

I still find it difficult understanding how a creditor can successfully prosecute a claim against a debtor in the absence of a signed agreement.

 

Essential and binding documents should be kept/stored and be produced upon request, if they're not then the agreement should stay unenforceable. I doubt many mortgage agreements are 'lost' or not stored, quite the reverse and most likely because of their value. The smaller credit agreement for unsecured loans/credit cards seem not to matter that much to the oiginal creditor. afterall they can sell them off, claim tax back etc....So if if doesn't matter to them why should the courts on occasion take their side?

[unclebulgaria67]

If this Cahoot account was signed up to online, my understanding is that it is much easier for the courts to accept lack of a CCA with a signature.

 

If this is the case, please comment as to how the OP may be affected in dealing with an appeal.

[Deb T]

If this Cahoot account was signed up to online, my understanding is that it is much easier for the courts to accept lack of a CCA with a signature.

 

If this is the case, please comment as to how the OP may be affected in dealing with an appeal.

 

 

I think the online signature/ticked box issue only refers to those taken out post 2007, the OPs'agreement dates to 2003 and is more than likely not applicable.

[unclebulgaria67]

I think the online signature/ticked box issue only refers to those taken out post 2007, the OPs'agreement dates to 2003 and is more than likely not applicable.

 

I have read somewhere that the courts will also favour online applications that were made before 2007, because there is a defined process that can be explained. If you tick a box as a signature for an online application, then this is as valid as any personal signature.

 

I only raise the Issue of online applications, as I thought the Cahoot were an online only company.

[Guest jsa12]

i will stick my oar in here,you really need to go in there with legal representation to argue your case,the problem is most people will not be able to put forward that effectively and appear unprepared.

 

the argument over dft guidelines are they are just that guidelines,these could be argued over and over but are trampled on by these dcas',my own experience metropolitan took part in the consultation name on the bottom of the dft pdf and were the first to break them by asking for increases while unable to do so,they have only just in the past few weeks written to say they they will reply to my cca request when able to do so,after my third letter was sent to date nothing previous since early may.

 

an argument would be that you never received or had a signed copy of your agreement in the first place which you should have been given.many older accounts are subject to this.

 

there are many reasons to fall into debt and while they say you spent the money its a joint responsibility and they held the petrol can with which was quite plainly ridiculous self interested motives' after my breakdown a few years back the money started to fly and the spending with it landing me in this mess.

[Deb T]

I have read somewhere that the courts will also favour online applications that were made before 2007, because there is a defined process that can be explained. If you tick a box as a signature for an online application, then this is as valid as any personal signature.

 

I only raise the Issue of online applications, as I thought the Cahoot were an online only company.

 

I think this thread explains it better, the cutout date appears to have been 2004, the op's agreement is before that ...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/203031-egg-loan-debt-sold.html

[andyskiv]

They found an 'agreement' from Cahoot three months after I sent a subject access request and seven months after I verbally asked for it (a very poor copy with the 2nd page font smaller than the 1st, so questions there. No T&Cs etc).

 

What I asked them for, before even thought about settling back in 2008, was proof of entitlement. They produced, after six months of asking, an alleged assignment contract with Abbey National and RW with no account details on it whatsoever, so an obvious element of doubt there. They could not produce an agreement to prove they owned MY debt, which was the point I was trying to make.

 

The Cahoot statements were pointing to a 'sale of debt' in 2006, but RW were STILL of the opinion they bought it in June 2003... with no particulars in the assignment to prove it, nor entry in the statements... and no default notice.

 

But the DJ said that she believed RW's employee (who even admitted she didn't know much about the document history, but "her boss would know more") that the 2003 assignment covered subsequent ones (!!). Incredibly the DJ bought the story.

 

Just given all the trail packs and notes to a solicitor to pick through. He'll let me know whether I have a case to appeal.

 

Do you reckon I have a case to answer the 2003 assignment especially if they can't prove that it covers subsequent debts bought after that agreement by RW? Seems madness to be as I am sure each contract would be totally separate as there would be a specific amount of debt bought at the time with a specific price paid for it. The RW witness put this in her statement and it will be on the transcript too, so I reckon they are without a paddle along poo creek... and don't get me started on a lack of Default Notice ;-)

 

If they bought the debt in 2003 why didn't Cahoot send me a DN and a letter of Transfer? More importantly, apart from a sly way of trying to get a Charging Order, why would a DCA wait 5.5 years to attempt to get payment (ie no calls or letters until November 2008 )...

[andyskiv]

Latest update from my solicitor:

 

"I am grateful for your comments and now very concerned as the judge has had the transcript for a week. We cannot use, or indeed read, the transcript until she approves it. It maybe that we have to apply for permission blind. The last day for filing documents is this Monday. I am holding off preparing in the hope that we get the judgement in time. If not we make the best of your recollections and go with that for the time being.

 

I am going to rely on the assumption that the assignment of your debt has no paperwork as the time to have produced it was at the trial. An umbrella agreement is not good enough in my opinion and a diverting tactic which appears to have worked in your case. Where is the proof of standing to commence an action against you? Where is the compliance with the CCA? Where is the proof of default on your part? These are where I believe we have a reasonable prospect of arguing they were findings of fact too far when considered on a cumulative basis."

 

I wonder why the DJ hasn't signed off the transcript? Perhaps she's read it and realised what a catalogue of errors she made in her findings and awarding the judgment to Rob Way and just wants to cover herself.

 

My solicitor refers to "apply for permission blind" - what is that? I've got a general idea of what it might be, but what implications does it have if that goes through.

 

Though I should get my money back, if the appeal works out, I am not keen on paying the DCA £13,700 within the next two weeks (my savings then wiped out and probably having to max out some credit cards to pay for it) to avoid a CCJ. Very unhappy to say the least.

[Deb T]

Presumably it means they'll have file for permission to appeal the judgement without the ability to rely on the transcript so instead will have to rely on your own recollection of events when setting out the bones of your reasons for appeal as without good reason it is not easy to launch an appeal...

 

Your solicitor gave some good grounds for appeal such as ' An umbrella agreement is not good enough in my opinion and a diverting tactic which appears to have worked in your case. Where is the proof of standing to commence an action against you? Where is the compliance with the CCA? Where is the proof of default on your part?

 

Quite concise, let us know how it goes as you progress