HELP!!! CCJ, can it be overturned?

[honey59]

Hi there,
I'm not sure if I'm in the right place as I already have a CCJ.
First of all, can I apologise for the length of this post as I am trying to get as much info in as possible.
I was sued in 2008 by a car dealer who claimed I agreed to pay 2.5k if I settled the finance within 12 months. I was not given a copy of the 'agreement' and he produced an alleged copy in court which I have no recollection of signing. The figure of 2.5k was filled in by hand. There was a space at the bottom to say that I understood and would receive a signed copy of the agreement, but this was blank.
My argument was that I could not remember signing it (I genuinely couldn't) and since I did not receive a copy, I could not take the consequences into consideration when settling the finance some 8 months later (I would definitely not have done so had I realised there would be a penalty). The claimant turned up with two witnesses and a barrister who was allowed to bully me mercilessly throughtout the hearing with no intervention from the judge, who found the case in the claimant's favour. I was on my own with no representation. She was also quite happy to award 2k in costs, which turned out to be incorrect. An offer to pay by installments (I am on a low income) was refused in court.

To cut a long story short, I managed to make arrangements to pay by installments but ceased paying a year later after my mother died and I could not cope. My husband had bought a business vehicle from the same dealer and had missed some payments due to a downturn in business. The vehicle was repossessd and the dealer took us both to court for nearly £12,000 (he had insisted I sign for the finance as my husband was self-employed at the time). This case came into court just before last Christmas. The dealer lost the case as he had used the wrong type of agreement (he admitted this twice in his statement, but still thought he could fraudulently obtain a massive sum of money from us). He was berated by the judge, who made it quite clear that he knew exactly what he was doing and it could not possibly be a misunderstanding or innocent mistake.
The dealer has now issued a writ in the High Court to recover the money from the first CCJ and I have had a mental breakdown over the fear of what will happen next. I have had a notice of seizure and walking possesion agreement pushed through my letterbox (no peaceful entry was gained and I have not signed anything). I do not even know if the writ should have been issued as the 'agreement' I was sued over may have been covered by the CCA. (If it wasn't, then would it have been legally enforceable?) The claimant knows that I suffer from depression as it was outlined quite clearly in both the court cases. I am very shaky and upset but am trying to deal with the situation. I will email the HCEO with an offer to pay by instalments and file forms N244 and N245 to try to stop enforcement.

My question is:

Is it possible to have the judgement set aside in view of the later attempt to obtain money by false pretences, or is it way too late? Is it worth mentioning this to the court or would it be pointless as judgement was issued?

Any help or advice would be greatly appreciated, thanks

[labman]

Re: HELP!!! CCJ, can it be overturned?

I always take the view with these things that it's worth trying. If you don't succeed then you've lost nothing, if you do, you've gained a lot.

[Trader97]

Re: HELP!!! CCJ, can it be overturned?

The difficulty you face is that the judgement in your case is not a default judgement, it is a summary judgement, one given after a hearing in front of the judge.

You cannot "set aside" a summary judgement, only appeal it, and to appeal you would ordinarily have to show an error in law by the judge, which doesnt appear to be the case from what you have said.

Unless there is anything else to this situation you havent mentioned, then I cant see that you could set aside that judgement (first one).

You might be able to have a reconsideration of the payment arrangement, if that is some consolation ?

[teaboy2]

Re: HELP!!! CCJ, can it be overturned?

If its a finnance agreement then the error in law would be that the claiment failed to produce a true signed copy of the original agreement (Op said in first post "There was a space at the bottom to say that I understood and would receive a signed copy of the agreement, but this was blank.". Instead they produced a mere copy of what the original would have looked like and its unlikely that they were put to proof by the defendant to strict proof that she received a copy of the signed agreement.

So the grounds for appeal would be that the judgment was made based on a reconstituted copy of an alleged agreement that did not contain the defendants signiture. where as:

In section 127(3) of the Consumer Credit Act 1974 it clearly states;
(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).


and


Section127(3) also provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor. This basically means a lender (Claiment in this case) needs to be able to supply a ‘true copy’ signed copy of a credit agreement, along with signed terms and conditions in order for it to be enforceable in a court of law. If a lender cannot supply this then the debt can also be rendered unenforceable.

So the above two points are what you should use as grounds for your appeal.


Also Honey59 - Does the car dealership have a credit license? If your not sure PM me the name of the car dealership and i shall check it for you. If it does can you PM me the license number and i shall check to see if its still valid or ever was valid. If they were not the credit company then they would have no right to any money, let alone take yu to court for it as only the finance company would have had the right to the money. So double check who the finance provider was and let us know.

By the way prior to april 2008 the upper limit for credit agreements regulated under the CCA was £25,000. Any agreements after April 2008 no longer have an upper limit so all would be regulated unless it is expressivly stated as being exempt under the act itself under section 16, 16A, 16B and 16C. Which are unlikely to apply to a car finance agreement anyway. So yes the CCA does probably regulate your car finance agreement.

[honey59]

Re: HELP!!! CCJ, can it be overturned?

Hi teaboy2,

Thanks for your reply, it's really really helpful. I'm not sure how to PM so I'll find out and get in touch a.s.a.p.

Many Thanks!!!

[Trader97]

Re: HELP!!! CCJ, can it be overturned?

Teaboy is right on the law point, but it would turn on whether you raised the unenforceability at the original hearing, and the judge decided against you, which isnt clear in the original post.

Bear in mind that should you be unsucessful on the appeal, there could be cots consequences which would be fairly substantial, as if the original hearing was in front of a District Judge, then the appeal is to the designated Circuit Judge at the court who made the judgement.

If you are considering an appeal, you are going to have to consider either getting advice from a solicitor, or from a suitably qualified person at the CAB or similar organisation, and fast, the time limits for appealing the original order will have passed by now, and an application to appeal out of time really depends on how fast you make it.

EDIT : I see that the order you would be appealing was from 2008 ? If so, then I revert to my view that it would be too late to apply now.

[teaboy2]

Re: HELP!!! CCJ, can it be overturned?

Hi Trader, just to fill you in more on the issue at hand.

Honey Pm'd the details of the car dealer ship, and informed me the finance was provided by a 3rd party finance company, whom we assume would have paid the value of the car to the car dealership. Now when Honey settled the agreement early, the finance company apparently claimed money back from the dealer and the dealer then took Honey to court for that money. The early settlement offer was claimed by the dealer as being a seperate agreement.

So all still a bit sketchy, but it doesnt add up right now. So honey is going to contact the finance company and see what they come back with. But as far as am aware the finance company buys/owns the debt, so the dealer should have no right to make any claim in the first place and should not be making any early repayment offers outside of the finance agreement between the honey and the finance company.

Even though it is out of time she can still apply for an "appeal out of time on Error of Law" (and on new evidence which may come to light soon) on the basis she only became aware of the point of law today, and to be honest the judge should have never ruled against her when there was not evident signiture or evidence to proof Honey59 had signed or received a signed copy of such agreement. Though the appeal will have to be made to the crown court most likely. Though i agree honey should seek a solicitor, alot give the first hours consultation free, and they can tell you how to go about it.

[honey59]

Re: HELP!!! CCJ, can it be overturned?

Hi there,
Rang finance company who are going to send a full copy of the agreement. They couldn't tell me much about what happened between the dealer and themselves, which is frustrating as I have no idea what they were told to push the finance through as I had recently been made redundant from my job at the time and made it quite clear to the dealer that I was not working but my husband would take over the payments until I found another job. (he was not asked to act as guarantor). I was told that the finance would not have gone through if I had no income (I wasn't even on benefits). Looking into the terms and condition, it seems that the finance company claim not to be liable for any dodgy scams pulled by dealers but only if the purchaser is a business, which I wasn't. What's interesting about that is the dealer kept claiming that I was a 'businesswoman' throughout the hearing and used exactly the same tactic when he later unsuccessfully tried to claim £12k from my husband and I. Very strange!

[teaboy2]

Re: HELP!!! CCJ, can it be overturned?

Having looked at the documents, i can confirm the credit agreement was with the finance company and the CCA is good, and the agreement with the dealer was basically where the dealer forfeited his commission from the finance company for the hire purchase, however if any payments were missed within the first 12 months, they would be entitled to reclaim the amount they would have received in commission which is what they took Honey to court for. Though Honey never missed any payments as far as am aware in those first 12 months (Let me know if you did honey?).

So that being said and the fact they forfeited their commission, then the finance company would not have paid them any commission and therefore would not have clawed anything back from them, unless the total amount of credit took account for the lack of commission, i.e. was 2.5K less credit then it would have been.

So in anycase, it seems that the dealer made a claim based on the dears agreement where they (Honey) would pay any forfeited commission if she missed a payment in the first 12 months. Which as she did not, then the entire claim the dealer may have been fraudulent, which would make sense given the second claim was found to be fruadulent or having no legal basis to make such claim.

[Guest]

Re: HELP!!! CCJ, can it be overturned?

If its a finnance agreement then the error in law would be that the claiment failed to produce a true signed copy of the original agreement (Op said in first post "There was a space at the bottom to say that I understood and would receive a signed copy of the agreement, but this was blank.". Instead they produced a mere copy of what the original would have looked like and its unlikely that they were put to proof by the defendant to strict proof that she received a copy of the signed agreement.

So the grounds for appeal would be that the judgment was made based on a reconstituted copy of an alleged agreement that did not contain the defendants signiture. where as:

In section 127(3) of the Consumer Credit Act 1974 it clearly states;
(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).


and


Section127(3) also provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor. This basically means a lender (Claiment in this case) needs to be able to supply a ‘true copy’ signed copy of a credit agreement, along with signed terms and conditions in order for it to be enforceable in a court of law. If a lender cannot supply this then the debt can also be rendered unenforceable.

So the above two points are what you should use as grounds for your appeal.


Also Honey59 - Does the car dealership have a credit license? If your not sure PM me the name of the car dealership and i shall check it for you. If it does can you PM me the license number and i shall check to see if its still valid or ever was valid. If they were not the credit company then they would have no right to any money, let alone take yu to court for it as only the finance company would have had the right to the money. So double check who the finance provider was and let us know.

By the way prior to april 2008 the upper limit for credit agreements regulated under the CCA was £25,000. Any agreements after April 2008 no longer have an upper limit so all would be regulated unless it is expressivly stated as being exempt under the act itself under section 16, 16A, 16B and 16C. Which are unlikely to apply to a car finance agreement anyway. So yes the CCA does probably regulate your car finance agreement.

HI

Just as note of caution.
As judge Wakesman pointed out in the Manchester cases, the court only has to prove that an agreement was signed on the ballance of probabilities in order to comply with section 127(3). Providing a copy of the actual signed copy is not strictly speaking needed, however, so far courts have been reluctant to enforce without production of some kind of signed document.(to my knowledge)

Peter

[basa48]

Re: HELP!!! CCJ, can it be overturned?

HI

Just as note of caution.
As judge Wakesman pointed out in the Manchester cases, the court only has to prove that an agreement was signed on the ballance of probabilities in order to comply with section 127(3). Providing a copy of the actual signed copy is not strictly speaking needed, however, so far courts have been reluctant to enforce without production of some kind of signed document.(to my knowledge)

Peter

Slightly pedantic, but don't you mean the lender has to prove an agreement was signed.

[Guest]

Re: HELP!!! CCJ, can it be overturned?

Slightly pedantic, but don't you mean the lender has to prove an agreement was signed.

No not really it will be the court that decides on the ballance of probabilities.

I think if the lender decided, it would probably be enforceable.

Burden of proof may alter the ballance slightly but not much.

Peter

[teaboy2]

Re: HELP!!! CCJ, can it be overturned?

From what i can make out so far, the dealer did not forfeit their commission paid to them by the finance company, as such then they did not comply with their part of the agreement between the dealer and honey. Plus the finance company so far has no knowledge of claiming back any such commission paid to the dealer. So according to current information we have the dealer not only received commission for the sale under the finance agreement but then took honey to court for the same amount of forfeited commission for which they had not actually forfeited - therefore the dealer made 2 lots of commission payments on one account and as such obtained money from honey via deception i.e. falsely claiming they had forfeited their commission when they had not. Not only that, but the finance company is liable for any agreements between dealer and honey as honey purchase was not a business purchase.

So as they had not forfeited the commission as per their agreement with honey, then they had no right to claim the money from honey as they had not been at a financial loss to start with.

[honey59]

Re: HELP!!! CCJ, can it be overturned?

Thanks Teaboy,
Hopefully things will become clearer when I get the information from the finance company. Even if they didn't pay the commission, there should have been something in the paperwork to say that 12 monthly payments must be made, which there wasn't or I wouldn't have paid the finance off early.

[teaboy2]

Re: HELP!!! CCJ, can it be overturned?

Well even if you paid off the finance early within 12 monthly payments you will have not missed any payments, as once paid off no payments are due anymore. I suspect the dealer may have pulled a fast one and got the money from both your finance company and you. It wouldn't surprise me given he knew exactly what he was doing in the second case which the judge rollicked him for before throwing it out.