lowell CCJ re: Cap1 card - now Warrant

[AndyOrch]

CPR 31.14 updated...now states Notice of Assignment (specifically)

 

Andy

[AndyOrch]

The court has yet to see your defence...a District Judge will only view the claim and defence a few days before the actual trial date....if it gets to trial.

 

Andy

[AndyOrch]

We appear to have a mass batch of these on the forum from Lowells today...some posters have recieved theirs some not.

 

Simple to complete...yes to Mediation...yes to small claims Track....name your Local county court as the venue...the rest are self explanatory tick boxes...return it to the court by the date stated and send a copy to the claimants solicitor...retain a copy for your file.

 

Andy

 

You can download your own here ......

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?406099-LEGAL-N180-Directions-Questionnaire-(Small-Claims-Track)-**Correct-at-Sept-2016**

[AndyOrch]

You can still agree to mediation...then reiterate that its proving difficult in view of the lack of paperwork that the claimants have failed to disclose.....they will have to disclose it anyway further into the process.

[AndyOrch]

The agreement must be in its full form including the prescribed terms and Terms and Conditions from inception and include an up to date statement...if the court request a copy of the default notice and they have failed to comply this must also be brought to the courts attention.

 

Yes that sounds like the Notice of Assignment.

[AndyOrch]

I didn't say you advised I write and ask for a stay. On the form of judgement it gave the option to do that otherwise I would not have done it.

 

Correct it does allow to vary or stay the order....which is standard procedure....however given the stage we are at in the claim a court would not allow you the defendant to stay the claim and we would certainly never advise same.

 

 

I suggest you submit a particularised defence .....rapid

 

Regards

 

Andy

[AndyOrch]

I just found out myself that the "original" signed agreement does not need to be produced in court.

 

So my defence seems to revolve around compliance. I suppose it can be argued that the copy of the signed agreement Lowell provided is not a "true copy" of the original. It is only part of the original document and does not contain the prescribed terms and conditions and it therefore unenforceable. I think though I would need to quote the particular piece of legislation concerned or it will not be considered.

 

And who told you that ?

 

" When did you enter into the original agreement before or after April 2007? Before 2007, not sure the exact date but I have a feeling it might have been 2005"

 

Section 127 CCA applies here (pre April 2007)

 

http://www.legislation.gov.uk/ukpga/1974/39/section/127

 

Andy

[AndyOrch]

A ruling in 2009 by Judge Waksman at the High Court in Manchester established it was not necessary for a lender to provide the original credit agreement, or even a direct copy, such as a fax or scan.

He ruled it was perfectly acceptable to provide a copy of the agreement reconstituted from other bank sources, so long as it accurately and honestly told the borrower the original terms and conditions, and any subsequent changes.

 

But only in the providing a response in connection to a section 77/78/79 request...not for enforcement purposes or if the agreement had been varied.

[AndyOrch]

And dont forget that you have to comply with the directions by the dates stated......points 7 /10/and 11.

[AndyOrch]

You are the witness...if you dont submit a WS your defence will be struck out.

 

No documents have yet been disclosed to the court.

[AndyOrch]

The DN refers to clause of 8 of the agreement should you breach the agreement......clause 8 in the T&Cs they have disclosed refers to monthly statements.....not a default.

 

Andy

[AndyOrch]

A witness statement...you have already submitted your defence.

 

There is still a legal process to following when a creditor terminates an agreement and wishes to enforce the agreement...get a good District Judge and he will throw it out on Agreement/Default Notice/Assignment as we have seen on various threads.

 

If your credit file is not great to start with a CCJ will not make it any worse...its one and the same in the eyes of lenders.

 

The CCJ would/could only possibly effect your wife if it was a joint application for a mortgage..that effect being refused..nothing to do with her credit record.

 

Andy

[AndyOrch]

Well I know we will be looking to buy at some time over the next couple of years so it is something to consider.

 

Also what happens if Lowell win and I have a judgement laid against me. I definitely can't afford to pay off the debt in full so where does that leave me?

 

With 2 options...

 

Accept the judgment and submit a variation order to pay monthly.

Approach the Claimant now and ask if they would be prepared to consider a Tomlin Order with view to making affordable monthly payments on the proviso that they stay the claim (no CCJ)

[AndyOrch]

So given that they have paid the hearing fee and submitted a witness statement .....the hearing will proceed....and you either take your chance and hope for a good District Judge who will follow the CCA1974 or you go for my option 2.

 

Choice is yours Sport.

 

Andy

[AndyOrch]

Yes still submit a witness statement no matter what...then you have complied with directions....allows you a little time to consider your position up until the hearing date.

 

If you are considering opting for a Tomlin Order dont leave it too close to the trial date.

[AndyOrch]

Best of luck Ds3...simply listen and ask questions...stick to your defence and witness statement and dont let their counsel lead the judge...assuming they even turn up.

 

Regards

 

Andy

[AndyOrch]

Sounds promising and looks like a notice of Discontinuance should be winging your way.....you need to check with the court what the final order is...dismissed or discontinued.

 

Ideally you should have gone back into the court room and asked the Judge what is verdict was?

 

Andy

[AndyOrch]

I doubt they will be too enthusiastic in paying another hearing fee or pursuing it further..most probably dismissed.

 

I wont amend your thread title just yet until you do the checks or receive a General Order DS3...update as and when.

 

Well done

 

Regards

 

Andy

[AndyOrch]

They probably had no option and couldn't get a rent a sol.....anyway they can only get a refund if they vacate within the prescribed period (7 days I recall)...not that that bothers you:wink:

[AndyOrch]

Only initial fixed costs in Small Claims Track...vacate is to vacate the hearing...but 1 days notice is going to get right up the DJ nose and he most probably dismissed their case...lets wait and see what transpires.

[AndyOrch]

It will all be taken into consideration if and when it actually gets to trial

[AndyOrch]

One of them was he Ds3Sport ?

 

Judge lottery and your paying his salary......okay so lets look at payment options.

 

You can now submit a fully particularised I&E by way of an N244 and request a redetermination with your new offer of monthly payment...there is no fee for this application provided it is made within 14 days of the date of judgment.

 

Regards

 

Andy

[AndyOrch]

The relevant CPR with regards to your redetermination

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part14#14.7A

[AndyOrch]

Submit an N245 with your I&E and make an affordable monthly offer £10 or there abouts you can only pay what you can afford..get it on legal footing... its irrelevant how long it takes to clear....Judges from another planet strike again.

 

 

There is a fee of £50 unless you qualify for exemption. 

 

 

 

Regards

 

Andy

[AndyOrch]

If the I&E reflects a negative...offer a £1 a month