Solicitor bailed out on me

[rdm2006]

They can send a reconstituted agreement to comply with cca request but MUST produce the original in court. To say that one must have been signed as an account exists is considered to be unfair by OFT

 

If they have threatened court action you can send CPR31.16 request for documents then plan to rely upon. You can not send these willy nilly as you may have to prove that there was a valid reason for this request.

 

If they have not threatened court action yet don't send the above there is a case on here somewhere, where the person was asked to prove the cause for the request and could't.....

[stupidboy]

Thanks for this rdm, I have a few on the go but only one is in the Money Claim Online system and I had a NWNF firm working for me.

 

When they said that they would take me to court I requested the document under CPR, which they failed to provide. I suppose my reason for asking for it was that they stated they were going to take me to court.

 

The solicitors have also requested the document under CPR and all we have is the miserable little application form - which I why I am puzzled as to why my solicitors suggest a Tomlin Order compromises the claim - surely a Tomlin Order gives the other side everything they want - and more...

 

At the moment I have no idea whether they are still working for me, I have no idea what they have done on my behalf, and I have no idea what timescale the court is working on. I wonder if a number of these NWNF solicitors are doing the same as Payplan et al - pretending to work for you, but actually representing the interests of the CCC's and taking a backhander for getting you to sign Tomlin Orders.

 

I can assure you that there is no legally enforceable agreement signed by me - so if they produce one it must be a forgery. Other than that, it seems that I need to have my defence properly prepared and it should be ok.

 

stupidboy

[nicklea]

The "agreement" which is actually an application form for another card on my wife's account and is only 2" x 6" without ANY of the requirements that I can see is signed, but is it is dated before the crucial date.

 

I can assure you that it is not a legally enforceable agreement when you read the CCA, but these solicitors are telling me that they can turn up with a reconstituted agreement and show the court what I would have signed, had they retained the original.

 

To take the second part first. If the agreement was commenced before 5th Aprtil 2007 then what they are saying is wrong - end of.

 

However, with regards to the first part, things might get complicated there. From what you have said it sounds like you were an additional cardholder on your wife's account.

 

I would suggest that your liability will come down to two things. First of all, are you jointly and severally liable. In other words, it was your wife's account so did the terms and conditions allow them to come after you as well as her?

 

Secondly, if the terms do allow them to come after you as well as her, was her agreement actually enforceable anyway?

 

So, I would suggest that you neeed to read the terms very closely to see if they can come after you as an additional cardholder

[rdm2006]

edit - sorry I've typed rubbish ignore this post.

 

Old and Blonde bad combination, very bad lol

Edited January 30, 2011 by rdm2006

[stupidboy]

To take the second part first. If the agreement was commenced before 5th Aprtil 2007 then what they are saying is wrong - end of.

 

Hi Nicklea,

 

It was before this date.

 

However, with regards to the first part, things might get complicated there. From what you have said it sounds like you were an additional cardholder on your wife's account.

 

Yes, but with a separate card and account number - she has not been legally pursued even though she has stopped paying to the same company.

 

So, I would suggest that you neeed to read the terms very closely to see if they can come after you as an additional cardholder

 

As above - this is the strange thing - they have more chance of getting my wife than I and yet I am the one being taken to court.

 

Regards,

 

stupidboy

[nicklea]

Yes, but with a separate card and account number - she has not been legally pursued even though she has stopped paying to the same company.

 

Ok, I'm afraid that doesn't make any sense at all. It's either the same account or it isn't. You can have more than one card on an account. They will each have different card numbers, but each card will be linked to the same account.

 

Did you used to get two seperate bills addressed to the two of you individually or was the bill just addressed to one person?

 

Now it sounds as though things have been progressing with the court case and you've come here half way through.

 

Would you mind posting up what was in the particulars of claim in the origianl claim form made against you, including who the claimant is and also what, if any, defence you have put in so far - obviously leaving out any poersonal details?

 

This will enable people to understand what your position is and give further advice from there

[stupidboy]

Ok, I'm afraid that doesn't make any sense at all. It's either the same account or it isn't. You can have more than one card on an account. They will each have different card numbers, but each card will be linked to the same account.

 

Hi Nicklea,

 

I certainly agree that it doesn't make sense. Unless I have missed something we appear to have two accounts even though mine is an additional card onmy wife's account. I can assure you that they are not taking any action against my wife - maybe their biggest mistake of all, perhaps?

 

Did you used to get two seperate bills addressed to the two of you individually or was the bill just addressed to one person?

 

Just separate bills addressed to two individuals.

 

Now it sounds as though things have been progressing with the court case and you've come here half way through.

 

Yes and no - I bailed out when they started action and got a NWNF firm involved - they now seem to be dumping me, although that is still not clear and I am back on because I am concerned that a) I am not getting best advice and/or b) they are working for the enemy

 

Would you mind posting up what was in the particulars of claim in the origianl claim form made against you, including who the claimant is and also what, if any, defence you have put in so far - obviously leaving out any poersonal details?

 

I can do this in a few days - I don't keep the paperwork at home as I am trying to avoid my wife having an official nervous breakdown (unofficial is bad enough).

 

Thanks so far - I'll do what I can tomorrow, if not Tuesday.

 

stupidboy

[rdm2006]

If you had a separate card on a separate bill then it is two individual accounts - what makes you think it is one account if you don't mind me asking?

[oilyrag]

Hi Stupidboy,

 

This solicitor whom you believe may have bailed out on you would be very foolish indeed to be "working with the enemy" as you seem to believe is an option as per your post above. It is a conflict of interest and on formal complaint would almost certainly lead to disciplinary action by the Solicitors Regulation Authority and possibly the Law Society. This can be draconian on transgressors. Solicitors do not have quite the same freedom as Barristers Chambers over this sort of thing.

 

I believe as you say you have a court case pending or on-going then you need a face to face with the QUALIFIED solicitor handling your case, not a para-legal, legal exec, clerk or any other non qualified person. Ultimately, the managing partner of the practice bears responsiblity for all of the actions within the firm. I would be inclined to firm up exactly what your no win no fee agreemnt actually is. A reputable solicitor is unlikely to work totally on an NWNF basis. We paid a relatively small sum which in the end was lower than one months payments on our cards for them to do all the investigating/evaluations etc and then to tell to the OC to go to court if they dare (on several accounts--one OC). Now we are in the position of all the ducks in a row and no further cost to ourselves should the worst happen. We are not with a CMC or charity either but a professional specialist litigation practice who know what they are doing. They even gave us time to get the money together but started work straight away as soon as the instructions were signed and back in their hands.

 

You need to know where you stand exactly and remember you are the client in this case. They must give you "best advice" in law or face the consequences.

 

regards

oilyrag.

[stupidboy]

If you had a separate card on a separate bill then it is two individual accounts - what makes you think it is one account if you don't mind me asking?

 

Just that the form they sent me under the CCA and CPR request is an application for an additional card. I suppose they must have opened up a new account instead of adding it to my wife's.

 

sb

[stupidboy]

Thanks for that oily,

 

I appreciate what you say and understand that they have a duty of care towards me. So how can they recommend a Tomlin Order when the CCC doesn't have a legally enforceable agreement?

 

It doesn't make sense.

 

sb

[oilyrag]

Hi SB,

 

It does not make any sense at all, hence my recommendation that you have a face to face with the formally QUALIFIED person handling your case, if not then the managing partner.

 

Two things,

1. Our solicitors right from the outset stated that we should have NOTHING at all to do with Tomlin orders, IVAs, DMPs or anything of that nature. It is almost a certainty that you will be left further in debt than when you started out. Their words.

2. With court pending or ongoing, whatever the state of play or your intentions you need to know EXACTLY what they have been up to, whether or not they are continuing to represent you or not. Clearly you don't now trust them and you should read diddydicky's thread "a Salutory Tale" in the legal issues forum on here.

 

best regards

oilyrag.

[stupidboy]

Thanks oily - turns out my solicitor is a trainee.

 

Nice to know that my life is in the hands of a trainee...

 

sb

[stupidboy]

Anyone heard about a High Court Judgement in the last few days affecting Default Notices - apparently good news for us but I am bereft of detail?

[oilyrag]

Follow pt2537 on here but he says at the moment all this stuff (two maybe landmark judgements one C of A one High Court queens bench) are only draft form and have not yet been formally handed down. I think everyone is holding their breath at the moment. plus there are two more case to be heard by the C of A this very month.

 

regards

oilyrag

[rdm2006]

any chance of a link oily ??

[oilyrag]

Hi rdm,

 

My links never seem to work as I would wish, but the thread you need to look at is "Phoenix Recoveries v D.Kotecha" in the legal issues of the debt subforums. There is quite a lively debate going on as per the Manchester Dissection became, but pt2537's comments on these judgements are there. Unfortunately until these judgements are formally handed down they are not really in the public domain and we can only theorise as to what they actually say.

 

Based on past experiences with these things, if they are as pt says, in favour of the consumer then there is unlikely to be trumpeting in the press and media and they may get buried if we are not careful.

 

Hope that this helps

regards

oilyrag

[stupidboy]

This is the only paperwork that they have sent me or the solicitors.

 

 

Edited February 14, 2011 by cerberusalert

[stupidboy]

BUMP - this is the agreement

[stupidboy]

bumping again - it was asked for and an opinion would be appreciated!

[oilyrag]

Heloo stupidboy,

 

I have seen your bumps. You have had advice from here yet it would seem that you have failed to act upon it.

 

As regards your paperwork, there are enough threads and direct information on here to determine to your own satisfaction the validity of said paperwork or otherwise as the case maybe.

 

Do you know EXACTLY where you stand with the solicitor you allege has bailed out on you?

 

Do you HAVE IN YOUR POSSESSION ALL of the paperwork and correspondence you allege has passed between court/OC /yourself and them?

 

Have you had the face to face meeting with the qualified professional at your solicitors recommended to start sorting out what they have done and where your case actually stands at this moment? That actually means a practising solicitor who by definition is an officer of the court not a paralegal(clerk), trainee, ;litigation exec. etc.

 

It is no good at all demanding help from here until you, yourself are in possession of all of the facts of the case. We cannot make your decisions for you we can only provide infromation for you to make your own decisions and until you clear up these outstanding issues it would be folly indeed for anyone to get involved.

 

Sorry and all that. best advice from the facts as I see them:: SORT OUT YOUR OWN SOLICITOR AND THEN GO FIND ONE THAT KNOWS WHAT THEY ARE DOING!!

 

regards

oilyrag.

[caro]

The Phoenix v Kotecha agreement is now in the public domain, and although Kotecha won, the claimant has been given the opportunity to bring the case to a county court again with the proper paperwork, so frankly I suspect it will be of little help to you stupidboy. Mr Kotecha had a document which proved what Phoenix came up with was not correct.

 

http://drrkproxxxy.appspot.com/www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2011/105.html&query=Phoenix&method=boolean

 

You should be aware though that if the creditor came up with a reconstituted agreement there's a good chance the court would accept it. I'm not saying that you are doing this, but the courts don't like CMCs and are going all out to stop people avoiding their debts (as they see it).

 

There have been a few successes against certain creditors due to mistakes they've made that have been picked up on.

[oilyrag]

Hi caro,

 

I should just like to point out that although Kotecha was a defendant in the original case, most claims management company claims are just that i.e claims against a creditor, mostly on the most frivolous grounds, which has not worked for a very long time now. It has been proper professional advice and the advice on here, to wait and defend a claim. It has also been a mantra in several other areas of the civil law, i.e. make them come to you!!

 

regards

oilyrag.

[caro]

Quite agree oily, but unfortunately many defendants have been tarred with the same brush.

[Peterbard]

Hi

 

Yes it should be remembered that if the creditor had come up with the corrected document at the orriginal hearing there would have been no issue to base an appeal on.

So unless you are somehow going to have your agrement declared properly executed in the first instance and then come up with a defective copy for the appeal(as here) it is going to be of no use whatsoever.

 

Petr