OP loses in court and gets CCJ

Nicky CCJ

Here we have a poster who is in court today. As is now customary, they have received “expert guidance” from Nemesis. The original defence was one of statute barred, however, the claimants have established that a number of payments were made between 2012 and 2015. Lowell are well known for all sorts of dirty tricks, including making up phantom payments, however, in this case it would appear payments in the amount of £215 were made. This isn’t just a one off £1 or £10 payment which are often explained as the fees for a CCA request or SAR, or just a random payment of, say, £5.

Judgment in Lowell’s favour

There are so many things that were missed here that it’s hard to know where to begin. It’s probably best to start from the end and work backwards. The poster appeared in court this morning and, thanks to mobile technology, was updating all along. They went back to say they had lost and the judge had awarded judgment for £2,343.80. So the judge took into account all of the OP’s arguments, only the OP did not raise the right points because the Beagles fell short of briefing her properly.

Great help from Nemesis

Nemesis, who had provided his usual “guidance” throughout, was the first to post in response to her last post regarding the CCJ: “So sorry Nicki, so disappointing. I thought we had it right!” That isn’t much help for the OP, is it? Even after this fiasco, they still went back and asked for advice from the Beagles. There isn’t much that could be said, or is it? Actually, there is! How about something regarding what the OP can do now they’ve got a CCJ, such as: “if you are able to pay the CCJ within one month it would be wiped off the system, otherwise the CCJ will stay on record for a full six years, even if settled in full…” for a start. Something about variations and redeterminations would have been useful, as the OP has six weeks to pay the full amount as it stands now and Nemesis didn’t mention: “actually, you could apply for a redetermination, but you have 16 days to do so…” You get the picture…

Pass the buck

Instead of offering any real help, Nemesis posted he would like a couple of site team members who are in the legal profession, to comment on the fact that judgment was issued despite no CCA being produced. No doubt the judgment can be the subject of extensive discussion from a legal perspective, however, their learned opinions on the matter won’t make any difference to the OP who’s got a CCJ. It’s a bit like saying: “the nutter who killed your son should never have been released from the psycho ward”. It won’t bring your son back. In this case, judgment shouldn’t have been made without the documents, but that won’t make the CCJ go away, will it?

Nemesis shrugs responsibilityNemesis is clearly trying to shrug off responsibility for the outcome when he is directly responsible, since he was the one who “guided” the OP throughout the last few days prior to the court hearing. Neither pt2537 nor Celestine posted on the thread. PT had been tagged but had not responded till this morning when the OP was already in court as Nemesis himself pointed out. PT had been tagged and mentioned a few times on the thread, he should probably have responded, however, he didn’t, so he cannot be held responsible for what he didn’t say. Celestine didn’t get involved at all so her comments would be purely academic. Nemesis offered no real help before the hearing and still isn’t offering any, just passing the buck.

And it’s too late baby…

PT must have been alerted, because he rushed to respond this morning. He is employed full time by Howlett Clarke so his main duties would be to his employers rather than Legal Beagles. Perhaps HC had other things for him to work on, such as things that would actually make some money for the company.

Too late

Linking and tagging

It looks like there was a lot of tagging going on on that thread as opposed to asking the right questions from the OP and offering real guidance, and it’s not hard to get lost in all the ramblings. On post #120, Amethyst tags not only PT but also @JAL,whose profile shows as having joined only a week or so ago and not posted at all. It’s rather intriguing, since there’s nothing in their bio to give any indication as to who they may be. Amethyst may well be offering a clue in Post #127 where she says: “Hopefully Paul will look in over the next couple days, or James, they will be able to give you much better pointers than I can.” As both PT (Paul) AND the mysterious JAL were tagged together, could JAL be this trainee solicitor at Howlett Clarke? James Leighton. The initials seem to be a match.

In any case, neither responded to the tagging, perhaps it would be more appropriate to just PM people if you want to attract their attention. At the very least, it keeps the whole thing private, so if they fail to respond, no-one will be the wiser. This way it’s very clear that lots of people are getting tagged and not necessarily responding. No doubt Nemesis loves being tagged because it shows just how “important” he is, however, others may not see it the same way, especially when, unlike Nemesis, they may have better things to do at times.

It is rather baffling to see Amethyst’s references to Grace v Blackhorse on Post #125. That ruling related to credit defaults, not an issue being raised on this thread.

Nemesis admits he is at fault

Nem does not read

Although Amethyst quoted from s.78 a week or so ago, there was no firm, assertive guidance regarding that side of things. It’s easy to forget that District Judges are NOT specialists in the Consumer Credit Act. It’s a safe assumption to make that a great deal of small claims cases heard would concern the provision of goods and services rather than credit agreements regulated by the CCA. Upon receipt of a money claim for a CCA regulated product, most defendants either ignore the claim and get a default judgment (over 75% of these claims go to default judgment) or the defendant would admit the claim. Cases have been won even when the claimants have produced a recon agreement, but it’s been up to the defendant to make their point and quote the relevant law and/or case law applicable. In this case, they should have quoted from s.78(6):

(6)If the creditor under an agreement fails to comply with subsection (1)—

(a)he is not entitled, while the default continues, to enforce the agreement

Nemesis has finally admitted that there’s a lot he’s not read. Hardly surprising when he doesn’t even read the posts he himself quotes (as clearly shown here: Their Nemesis) or even the thread titles. Hasn’t he always claimed to have over 40 years debt advice experience? Surely even with four years, he should know about s.78. It’s not rocket science.

We can be in no doubt that it was Nemesis who wrote the defendant’s witness statement: Post #72. This was one of the many occasions where he apologised for not being able to be there, making it sound like he is the only one who can offer advice, despite this being a forum with over 70,000 members.

S. 127(3) anyone?

On post #147, the OP mentions it being pre-2007. Most people have heard the 2007 bell ring but few actually know what it’s all about. If the agreement was entered into before the 6th of April 2007, then it would be unenforceable unless it contained all the prescribed terms at the time of signing. There are a few things to consider here such as whether it was an online application made from 2005 onwards. 

The key to a successful case is to get all the facts right and have them at your fingertips. The Beagles should have asked the OP about the details of the account, starting from when it was opened and whether they recall how they opened it. Sadly most people can’t remember much but it’s worth trying to refresh their memories by asking the right questions, such as whether they applied in branch or as a result of a magazine advert or a mailshot. Another question would be whether they just filled in a short application form and then received the terms with the card carrier, which was common practice in the early noughties. That being the case, the account would be irredeemably unenforceable under s.127(3). In case you haven’t heard about it, Legal Beagles have an article of their own on the subject: Unenforceable credit agreements. Not something Nemesis would have read, of course, he is too busy jumping on every thread posting his usual nonsense.

Asking HOW and WHEN they got the card should always be the first thing to do when someone receives the claim, as it can make all the difference. In this case, no-one asked that in any detail, in fact, there was even a suggestion that the claim may have been for an O2 account! One thing is not to have received a copy of the agreement, which falls under.78 of the CCA, another is not to have signed an agreement containing all the prescribed terms at the time of taking out the card. The two are very different in scope, s.78 only makes an account temporarily unenforceable while s.127(3) makes it irredeemably unenforceable. However, s.127(3) was repealed with effect from April 6th 2007 so it would only apply to any agreements entered into before that date. All this is basic CCA 101 and should have been spelled out to the OP from the start.

A catalogue of errors

Without going into minute detail, a quick look at how this thread develop shows a number of failings on issues that could have made all the difference. First, let’s look at the matter of payments. The OP seemed to be quite confident that the debt was statute barred, based on the fact they had not made any payments to HSBC since 2008. However, further down the line, evidence was provided that they had, in fact, been making regular payments between 2012 and 2015. There was clearly a misunderstanding of the Limitation Act 1980, whereby there should be no payments made towards the account in question in at least six years. It is true that, once a debt is statute barred, it cannot be un-barred, not even by making a payment, however, for that to happen, you’d need a period of six years with no payments. In this case, payments stopped in 2008, then they were made again in 2012, that’s just four years rather than six. Surely if they were paying as recently as 2015 they would remember that.

That takes us to the matter of SARs. On Post #133, the OP asks whether it would have been wise to have sent a SAR. The problem with SARs is that the company has 40 days to respond and you get a maximum of 33 days to file a defence. The numbers don’t add up. However, it is often possible to get the other side to agree to an extension of time to file a defence, especially when they have not complied with a CPR 31.14 request, and they never do. An extension can be up to 28 days so if you’re lucky, you can get your SAR before filing a defence. In any case, it takes a few months for a case to reach the trial stage, during which you’d have plenty of time to receive your SAR even after you’ve filed your defence. Most banks do respond in 40 days or thereabouts and that should give you a very useful source of information regarding payments made and charges applied to the account, including any PPI and late payment charges. 

If your defence is going to be statute barred, as SAR is essential to establish when payments were made (or not as the case may be). Interest and charges are not usually challengeable per se, however, being in possession of these figures can make all the difference between winning and losing. If the claimant supplies a document purporting to be a copy or recon of your agreement, it is possible to determine whether the agreement supplied related to your account or not by looking at the amounts quoted and comparing them with the amounts charged. If, say, late payment charges were quoted as £15 on the purported agreement yet you were charged only £12, you know those were not the terms of your agreement, unless they were varied, in which case they should also supply the terms as varied.

There was someone on Legal Beagles who won in court because they were able to assert that the agreement supplied was not the one they’d entered into based on the amounts charged for interest and late payments, etc. It is possible to win even when they supply a document, as long as you know how to challenge it. In this case the OP was not given any guidance whatsoever in that respect.

No point crying over spilt milk

On Post #147, the OP says: “the judge made a big issue over the DN being served”. In all fairness, banks do send DNs, other outfits such as catalogue companies may not always do it, but banks do send them out. That doesn’t mean they are always compliant, but there’s no way to know if you haven’t got your own copy. As has been shown on this thread, the only document the banks retain is usually the template letter they use to issue DNs. The whole process is done at run time, merging the variable fields on the template letter with certain database entries and sending the whole thing to print, without retaining individual copies.

You can, of course, say you DON’T RECALL receiving one, and go on to put the claimant to strict proof that one was sent. That way you are not saying they didn’t send one, and you are putting the ball on their court. This wasn’t suggested here, it’s not the sort of thing that would occur to Nemesis.

Spilt Milk

The OP also says they raised the point about the agreement being pre 2007, however, that, in itself, is no argument at all. There is no law that says any credit taken out before 2007 does not have to be repaid. If you are going to use the pre-2007 argument, you need to know what it means to start with. The OP could have said they did not recall signing an agreement when they took out the card and, once more, putting the claimant to strict proof. They could have said they signed a short application form or gave their details over the phone, we don’t know and no-one asked, nor did anyone explain in any detail, the implications of it being “pre-2007”. No wonder the judge skipped around it, the point was not made.

The OP is asking about appealing. The question would be, on what grounds? They submitted a statute barred defence and the debt was not statute barred. They failed to point out that the claimant was in clear breach of s.78(1) of the CCA by not having responded to a CCA request and, as per s.78(6), the debt could not be enforced. They did not say anything definite with regards to s.127(3) (a.k.a. “The Pre-2007 argument”). The judge ruled based on the facts put in front of him. Had different facts been put forward, he may have made a different ruling.

Now they’ve got judgment, Lowell can do as they please. They can reject the F&F settlement offer and say they want the full amount, even if paid in installments. They own 1000s of accounts, so every little helps. No-one bothered to ask the OP whether they were homeowners, if so, Lowell will apply for a charging order against their property and secure the debt. The amount is over the £1,000 threshold, even if probably not large enough to be enforced with an order for sale, the charge would give them the upper hand.

All in all, an almighty c*ck up that could have been very easily avoided by asking the right questions and giving the OP the right answers in a clear and concise manner, quoting from the relevant legislation and advising them properly without all those ramblings by Nemesis who just feels compelled to answer with *something* so as to keep his position as Advisor in Chief.

The following post sums the whole thing up:

Bugger

 

 

4 Comments

  1. Interested Party says:

    Is that all that woman can say….. I thought it was tomorrow…………. f**king hellfire that is disgusting, I am so angry. Oh and of course if a member should decide to sue them for wrongful or zilch advice what would happen, absolutely nothing, neither of them own their homes so that negates a compensation claim, it would then fall on poor old Nick as usual to bail them out.

  2. Agent 99 says:

    While Sharon and the rest of the Team stay away, Nemesis just can’t help himself. The OP says they’ve been stitched up by the DJ, in fact, they were stitched up by the Beagles.

    Nemesis goes on to say they need to know what the DJ relied on, the answer is quite simple: the evidence put in front of him! Mostly by the claimant, by the sounds of it. The defendant had prepared a defence based around statute barred and payments were made as late as 2015, so that was out the window. The Beagles never actually told the OP what to say with regards to s.78(6). It clearly states that the debt cannot be enforced while the creditor is in default, did anyone post that in the run up to the hearing? NOPE!

    The OP said “it was pre 2007” but didn’t explain the significance of that because there was no mention of s.127(3) on the thread, how would they know? How would the judge know what “pre 2007” meant? The DJ relied on what he heard, not what he should have heard had the Beagles got their act together.

    Yet again, PT is being tagged. What do they expect him to say? That the OP wasn’t given the full facts? And just WHOSE fault was that?

    If they didn’t offer Nemesis a cuckoo clock for his birthday, they should be giving it to him today, and set his access to read only. If this isn’t an example of that guy’s utter incompetence, what is? Yet the management turn a blind eye and allow him to keep going. In the end, Nemesis is just a username on a forum run by other people, it is those people who are ultimately responsible for the advice given. It’s bad not to reply to posts as seen here: No reply, it’s even worse to reply and not provide the right information. At least those who didn’t get a reply may have gone elsewhere looking for an answer.

    • Flaming Parrot says:

      One thing I can say is, when I was allowed to post on LB, I would have started by asking the OP when they got the card and whether they could remember anything about taking it out. If it was after April 2007 then we could dispense with all that and if it was a post 2004 online application, it could also be difficult to play the irredeemably unenforceable card but when it applies, it’s an ace! Only second to statute barred, something that people so often get wrong for some reason. Whenever someone mentioned the debt being SBd I always said it was wise to have a “PlanB” in case it turned out not to be SBd, otherwise you have no defence.

      The s.78 arguments still apply to cards taken out after 2007, no wonder the judge didn’t see the significance of the date. I’d have told the OP that if they had sent a CCA request that wasn’t complied with, that would be enough to make the account unenforceable but they would have to make the point, show the CCA request, proof of delivery and any letters from Lowell saying they were trying to obtain the documents from the OC. Then print out s.78 from the legislation site and highlight s.78(6) where it says the creditor is not entitled to enforce the agreement. If you put that in front of the judge, how could he rule in favour of Lowell? Yes, a recon is fine, yes, signatures are not essential, only in this case nothing was provided.

      It doesn’t look like there was a mention of directions asking Lowell to provide the documents at least 14 days prior to the hearing.

      Not having costs awarded against the OP was not lucky, costs are not normally awarded in the small claims track, they would only be awarded in exceptional circumstances.

      It may sound like I am blowing my own trumpet but never mind that, I reckon if I had been around and posting on that thread, the outcome may have been different, simply because I would have pointed things out that weren’t. As we all know, I was relegated to the Ban Club while Nemesis was given the run of the claims area. I rest my case.

  3. Jon says:

    I am kinda appalled
    Surely the whole thrust of the defence here should have been non compliance with S78 . I know it was mentioned in the initial defence but hardly mentioned in the WS. Another problem as far as I could see was that even after the poor OP had said that the debt was not SB the witness statement went on claiming it was, no wonder the judge found on balance that what the claimant said was true regarding the DN and NOA.

    Surely he needs some kind of qualification of liability insurance – or a signed waiver, to be writing witness statements for people , if not then it shows how much of an ass the law is.

    My interpretation , from what was said is that the judge assumed that S78 had been complied with . I do wonder if he asked the defendant during the case if it had been received as the claimants WS seemed to give the idea that it had been requested and therefore although it was late it was sent.

    The rest is just hyperbole aimed at impressing some poor unfortunate

    The DJ was aware that there was persuasive arguments that the original agreement did not need to be provided ( Arrow Global v Frost) and I didn’t even see any mention of S127

Leave a Reply

Your email address will not be published. Required fields are marked *