*** WON *** Lowells Claim for Capital One Card

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Re: Lowells Claim for Capital One Card

One more thing is that when he was summing up and dictating the order the judge asked me the direct question "did you ever have a Capital One card?"

We were there to argue the points in the claimants witness statement as to whether or not the agreement was enforceable but the judge decided to cross examine me directly. Isn't he doing the claimant's job for them? The judges question has only two options for me; incriminate myself or lie and be in contempt. Was this fair?

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Re: Lowells Claim for Capital One Card

Hi Amethyst,
I received a copy of the judgment today. There isn't a sanction if Lowells don't come up with the goods in time. Is this usual?
Instead the judge has asked for me to pay for a handwriting expert to check signatures, and a further trial, all causing much additional expense.
Judge also didn't wait to hear another part of my defence that the default notice is incorrect as per CCA1974 s88 (1) since it doesn't show a specific date to repair the breach.

tks
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[Amethyst]

Re: Lowells Claim for Capital One Card

He has ordered copies of ALL amendments up to 5 May 2014 as well Although I suspect they will only need to put together the actual inception terms to get through.

The handwriting expert bit is, obviously, as you are disputing the signature on the inception copy is yours. You could get in touch with 3 handwriting experts and get a 'quote' from each - then pass that on to the Claimants to agree which one you use. The costs are to be paid by you now, but the cost would be awarded against the other side if the handwriting expert agrees with you and the case goes against the claimant. The quotes might encourage discontinuance - if they have done anything funny with the docs...

had a quick scout about on expertwitness -

http://www.expertwitness.co.uk/Searc...&expertid=2135 ( http://www.fds-ltd.co.uk/services.htm )

http://www.expertwitness.co.uk/Searc...&expertid=5106


The Judge in small claims does get more involved so yes it is quite normal for him/her to question whether you ever had the card and owe the debt. You do really have to push for the CCA technical arguments to be taken into account with some judges - they can be a tad anti debtor Well done for getting through as it is easy once that question is asked to throw in the towell, particularly when you're unrepresented.

It might, at this stage, be worth a chat with a CCA specialist - http://lbcompare.co.uk/listings/?fwp...mer-credit-act

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Re: Lowells Claim for Capital One Card

Thanks,
So if Lowells don't come up with any docs do we still go to the expense of another trial?
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[Amethyst]

Re: Lowells Claim for Capital One Card

Well you have to file a further defence by the end of November - so if they fail to come up with the docs your defence will remain as is, in essence, but asking for a strike for non compliance with the order. If they do come up with the docs then it is likely ( depending on how strongly you feel on the signature) you'd be thinking of a negotiation. So hopefully not a further trial, but the possibility exists of course.

[monoko]

Re: Lowells Claim for Capital One Card

Horrible, just horrible.
Feel for you. I am sure you are bitterly disappointed with how courts/judges give a leeway to their solicitor colleagues.

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Re: Lowells Claim for Capital One Card

Thanks again.
Ive had a look at a link Amethyst posted previously that shows an actual 2002 set of T&Cs. A hypothetical question; if Lowells put forward another set of docs and if they differ, how can I prove their new docs aren't the real deal?
If I produce a copy of the correct docs in court as evidence that their docs are wrong then I've done their job for them; I've confirmed that I am in receipt of the correct T&Cs by virtue of the fact that I have a copy of them.

...my brain hurts
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[Amethyst]

Re: Lowells Claim for Capital One Card

You wouldn't produce a set of the correct docs to the court or claimant, you'd just be able to use them as a comparison to know which parts of their version to query.

[Diana M]

Re: Lowells Claim for Capital One Card

the judge has asked for me to pay for a handwriting expert to check signatures, and a further trial, all causing much additional expense

Rightly or wrongly the DJ's role is to be objective and impartial.

If you've said you will be challenging the honesty and accuracy of your signature then the appointment of a handwriting expert may be the only evidence he's prepared to accept to decide on the issue of forgery.

If you were arguing over faulty workmanship with a contractor the DJ would likely order an independent surveyor's report. Or a medical report in the event of a personal injury claim.

It's not personal and he has only said that you must pay for it "in the first instance". That implies that if you're right (the signature is a forgery) then the other party will have to pay the expert's cost.

The thing that occurs to me is that even if it deemed to be your signature, surely the question really should be did you put it (signature) on that actual document or was it copied from elsewhere?

Di

[Diana M]

Re: Lowells Claim for Capital One Card

Judge also didn't wait to hear another part of my defence that the default notice is incorrect as per CCA1974 s88 (1) since it doesn't show a specific date to repair the breach

Just because the DJ didn't hear or make a decision on another of your legal arguments, that doesn't mean they're not still valid.

If he'd dismissed your Defence without considering your evidence then he would know he's open to an appeal.

Maybe he's 'kicked it into the long grass' so that another DJ can deal with the decision he's loathed to make.

Paragraph 4 of that Order says the hearing has been adjourned to the first open date after blah blah blah. It doesn't say he's reserved the case to himself which may mean he's hoping one of his colleagues will have to deal with it.

Don't give up yet

Di

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Re: Lowells Claim for Capital One Card

Maybe he's 'kicked it into the long grass' so that another DJ can deal with the decision he's loathed to make.

Paragraph 4 of that Order says the hearing has been adjourned to the first open date after blah blah blah. It doesn't say he's reserved the case to himself which may mean he's hoping one of his colleagues will have to deal with it.

Don't give up yet

Di

Thanks Diana, I'm really grateful for all the advice i'm getting and I'm certainly not giving up; I don't think you lot would forgive me if I did. :yield:

Its interesting that you mentioned the judge's reticence to make a decision. When I was arguing at the end that Lowells had so many opportunities and had ignored court orders the judge rolled his eyes and said "I told you both at the start that I wouldn't be striking out the case today". I don't remember him saying that, nonetheless it ties in with your opinion that he likely doesn't want his signature on an order to strike out this claim. Perhaps he feels I had a strong legal case but a weak moral one and that didnt sit well with his conscience.

[nemesis45]

Re: Lowells Claim for Capital One Card

The judges decide on " the balance of probabilities " in civil law claims not the basis of " beyond reasonable doubt " in criminal law.

Perhaps the judge wants to see all the events / actions/reactions that have resulted in the claim he/she has to make a decision.

nem

[Diana M]

Re: Lowells Claim for Capital One Card

When I was arguing at the end that Lowells had so many opportunities and had ignored court orders the judge rolled his eyes and said "I told you both at the start that I wouldn't be striking out the case today". I don't remember him saying that, nonetheless it ties in with your opinion that he likely doesn't want his signature on an order to strike out this claim. Perhaps he feels I had a strong legal case but a weak moral one.

A wise DJ said recently "we're here to judge facts, not morals".

You seem to have got one who'd made up his mind before he'd entered the room.

Di

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Re: Lowells Claim for Capital One Card

So the judge has decided he isn't going to 'judge' on the merits of the evidence and the legal arguments, he wants to go on a fishing trip for more evidence in an attempt to undermine my strong defence. Doesn't that make him somewhat impartial?

I'd hate to be up against him if I was young, disadvantaged, from a poor background, falsely accused of a petty crime and the prosecutor had flawed, disprovable evidence and I had a very strong alibi....... just in case he decided he didn't like the look of me or he fancied playing the role of Sherlock Holmes just to bury me.

(sorry for the rant)
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Re: Lowells Claim for Capital One Card

Hi all, just to update; Lowells haven't responded to the order to provide the T&Cs, court nor myself have received them and theyre 2 days late.
They have paid the hearing fee though...