Another court case - hearing on the 24th August..HELP!

[middenmess]

Re: Another court case - hearing on the 24th August..HELP!

Am I just being a naive numpty but what's the point of having laws if Judges don't adhere to them?

IMO

CL believed it to be an absolute assignment [albeit with some iffy documents]

Zhan thought it might well have been if the paperwork stood up to scrutiny as did everyone who followed this thread and a defence of sorts was put forward then along comes the judge and rules it is an equitable assignment and allows judgement despite the fact that CL shouldn't have been able to bring the case in the first place!

It's fast approaching the point where if a dispute is raised against you for any reason whatsoever,you might as well admit to everything irrespective of whether you are guilty of the dispute or not because if you are daft enough to deny the charge you will be found guilty anyway!!!

Crazy world or what?

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

I have got to say although he might come to the wrong conclusion he was very very very thorough take into account everything. The judge asked me is there anything new he other than what stated in my amended defense... I said no..

[Amethyst]

Re: Another court case - hearing on the 24th August..HELP!

Cool. Thats nice of him, win or lose it nice they recognise the hard work you put in.

Yes you'll have a CCJ with an installment plan. You basically apply for determination and put in your Income Expenditure sheet. Its not a massive amount so I doubt you'll have any issues with charging orders or whatnot.

No costs for the actual hearing other than the £100 ? Thats good news

Leave it till Monday tho x

[Amethyst]

Re: Another court case - hearing on the 24th August..HELP!

lol middenmiss, when it comes down to it, and no offence to ANYONE at all intended, the debts arent REALLY disputed are they, not in the sense that justice hasnt been done. If you had never had a debt with this company the arguments, onus of proof and evidence would be entirely different from arguing some technical aspects.

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Am I just being a naive numpty but what's the point of having laws if Judges don't adhere to them?

IMO

CL believed it to be an absolute assignment [albeit with some iffy documents]

Zhan thought it might well have been if the paperwork stood up to scrutiny as did everyone who followed this thread and a defence of sorts was put forward then along comes the judge and rules it is an equitable assignment and allows judgement despite the fact that CL shouldn't have been able to bring the case in the first place!

It's fast approaching the point where if a dispute is raised against you for any reason whatsoever,you might as well admit to everything irrespective of whether you are guilty of the dispute or not because if you are daft enough to deny the charge you will be found guilty anyway!!!

Crazy world or what?

Again its all depend on the judge isn't it and depends on his interpretation of the law.

When the judge said that it was equitable assignment and bla..bla..about his decision, I thought to myself ... OK I am not prepared for this but I raised my hand when he finsihed and asked if I could asked a question as to what is equitable assignemnt .. the judge told that he is not to do a lawlecture here but kinda explain some goobly gahh to me then I said that I thought equitable assigmenmt means that they can't take me to court on their own..
and u know what.. now that I remember it, it actually draw
silence on all part, the judge actually asked the agent about this and then make noises that the judgement still stand.... OK don't know what else I am supposed to do after that ....

As I have bigger problem to deal with i.e my Amex case which in amount is more scarier than £1,600... I thought I accept this judgment even though I don't agree with it..

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Probably hun. When we looked at it originally we said if they showed it to the court they'd get off with it as it shows they complied with the FSA undertaking after then. Swings and roundabouts these days in court isnt it. Shame you didnt get the credit hating judge we hoped for . What happened with the DN stuff ?

well.. the DN stuff.. he basically state this:

1)he is basing on the DN that I submitted as exhibit as that is the original one
2)the woodchester case I gave does not really applicable to my case
2) the date does not has to be specified in DN even though sch 2 said so and he even quote s 88(2) ....
3) as the date is the onli issue i gave, then he consider it as deminimus and the DN stands

[middenmess]

Re: Another court case - hearing on the 24th August..HELP!

lol middenmiss, when it comes down to it, and no offence to ANYONE at all intended, the debts arent REALLY disputed are they, not in the sense that justice hasnt been done.

I understand your view and cannot dispute that there was a debt but if the correct procedures and processes are not followed to recover it lawfully,then there is no point in having them.

If you had never had a debt with this company the arguments, onus of proof and evidence would be entirely different from arguing some technical aspects.

Nail on head?
Zhan never had a debt with this company as the Judge ruled that the assignment be determined as an equitable one meaning AFAIK that CL were collecting for Santander and could not bring proceedings to recover the money for themselves.

Another couple of points bother me as well..

1. I know that judgement has been passed and that the assignment has been determined as an equitable one but the deed posted by Zhan at post 9 unequivocally sells all rights to CL Finance.

As the assignment is deemed equitable what assignment was the judge looking at to so rule?

2. If collecting the debt was so easy and straight forward why did [or did not dependant of what you make of the assignment] Santander sell the debt for peanuts?

The more I learn the less I know with these cases!

[Amethyst]

Re: Another court case - hearing on the 24th August..HELP!

She owed the debt to Debenhams, theres no dispute about that (well except the technical upgrade to credit card stuff but Zhan used the credit card and had the benefits of the credit) the debt changed hands as companies were bought out and whatnot, Santander and CL finance agree that CL can collect on it, how thats organised is none of our business really so long as she isnt disadvantaged by it (ie there arent stacks of extra charges whacked on because of it). That's how the judge has seen it and judged on it isnt it.

[frisp]

Re: Another court case - hearing on the 24th August..HELP!

So despite all the hard work put into this case it all comes down to the opinion of a Judge who obviously does not understand the legal ramifications of CCA cases.

We're all 'fecked'

[Wolfy]

Re: Another court case - hearing on the 24th August..HELP!

I am sorry but in this case I think the judge got it wrong. If the assignment was only equitable, and I'm not commenting on whether it was or wasn't, then the creditor has no right to bring the case in their own name. In order to do so they would need a legal assignment, which the judge says they haven't got.

From Goode on Consumer Law (45A.20)

"If there is a completed s136 assignment the assignee is the only party entitled to enforce those rights(legal assignment). With an equitable assignment the assignee must either sue in the name of the assignor or join both himself and the assignor as parties to the action"

[pt2537]

Re: Another court case - hearing on the 24th August..HELP!

I am sorry but in this case I think the judge got it wrong. If the assignment was only equitable, and I'm not commenting on whether it was or wasn't, then the creditor has no right to bring the case in their own name. In order to do so they would need a legal assignment, which the judge says they haven't got.

From Goode on Consumer Law (45A.20)

"If there is a completed s136 assignment the assignee is the only party entitled to enforce those rights(legal assignment). With an equitable assignment the assignee must either sue in the name of the assignor or join both himself and the assignor as parties to the action"

the problem is these waters are muddied a touch as ,as a whole, the assignor may be joined if the court thinks fit be compelled to join the
assignee as a party; so too an equitable assignee who sues alone may be required to join the assignor. (Cf. William Brandt's Sons & Co v Dunlop Rubber Co [1905]).

[Wolfy]

Re: Another court case - hearing on the 24th August..HELP!

But that's exactly the point PT. Here we had an equitable assignee who sued on their own which they aren't allowed to do. The assignor, at the very least, should have been joined as a party, either as joint claimant if they agreed to do so or defendent if they refused. To simply give judgement to a party which had no right to enforcement on their own must be wrong and grounds for appeal.

Just add that s136 of the Law of Property Act is there for a reason. If a company fails to comply with the act and acts on their own the sanction must be that they loose their case. They can of course try and remidy any default and even join the assignor, but to get to a hearing having failed to do any of this then the santion must be that there case is struck out as having no realistic chance of success on their own.

[pt2537]

Re: Another court case - hearing on the 24th August..HELP!

But that's exactly the point PT. Here we had an equitable assignee who sued on their own which they aren't allowed to do. The assignor, at the very least, should have been joined as a party, either as joint claimant if they agreed to do so or defendent if they refused. To simply give judgement to a party which had no right to enforcement on their own must be wrong and grounds for appeal.

ahh there is case law that says it is not necessary, to join the party ,

I had this case referred to me a while back , i will go dig it out

[middenmess]

Re: Another court case - hearing on the 24th August..HELP!

The assignment that was posted up states that Santander wanted nothing more to do with the account -it's sold lock, stock, and barrel to CL.

By stating that the assignment was an equitable one the judge has in effect ordered the debt has to be repaid to Santander---hasn't he?

[Wolfy]

Re: Another court case - hearing on the 24th August..HELP!

Mid as I said I have no idea if the assignment was equitable or not only that the judge said it was. If it was then in my opinion, backed up by numerous citations, then the judge got it wrong in letting the assignee sue in their own name. I will of course bow to PT if he can manage to find the case he reffered to but I have to say I have been through LexisNexus with a fine tooth comb and can't find many cases. PT is right though chose in action is a very murky area.