Appeal CCJ and lowell payment request

[charitynjw]

Re: Appeal unenforceable debt ccj

If you decide that you want to appeal this judgement, it is worth noting that:

You will need to seek permission for an appeal.

If it is given, the appeal itself is not a rehearing of the case. It is passed to a more senior judge to see whether the hearing judge has made a mistake either in correctly applying the law or in interpreting the facts of the case, or perhaps if there were any procedural mistakes.

Time limits for appealing are very strict. (Normally 21 days from the judgment). There is also a fee for the appeal. If you are on a low income you might be eligible for fee remission.

If it were me I'd ask for written 'reasons' from the judge.

I'll give [MENTION=71570]R0b[/MENTION] a nudge for further pointers.

[R0b]

Re: Appeal unenforceable debt ccj

Well first of all, you've got 21 days from the date of the judgment to seek permission to appeal, so not alot of time.

Secondly, if your primary argument is that the agreement is unenforceable because they can't locate a copy of the agreement, did you send Lowell a CCA request and did they comply?

I'm not sure whether there is a specific requirement under the CCA that the agreement must be signed to be enforceable (Diana might know) but under general contract law, just because an agreement isn't signed or dated doesn't mean that it is unenforceable - contracts can be entered into through conduct and provided both parties acted in accordance with the terms, then it can be implied by conduct that an agreement has been entered into.

What was your arguments on assignment? Obviously if a legal assignment can't be produced and/or they don't know when the notice of assignment to you was given, it is arguable that no legal assignment took place and that it is only an equitable one. If that is the case, then Lowell would have required to have the legal creditor to bring a claim in their name but Lowell added as an interested party.

Was a default notice ever served on you or if not, did you raise this as an issue?

Based on previous threads on here, terms and conditions may not contain the prescribed terms as required by the CCA and could therefore mean the agreement is unenforceable (again Diana will know of these).

Finally, you said the judge found in favour of Lowell, did you make a note of his reasons why and did he explain clearly why he was giving judgment? Did the judge disregard any evidence you put forward including the assignment issue?

Maybe Diana could shed some further light on anything else I've missed out.

[Jeed]

Re: Appeal unenforceable debt ccj

Thank you very much Charitynjw for your help. Is it not possible to set aside the judgement or write to the judge to re-examine the evidence of the unsigned and undated original copy of agreement that I mentioned during the hearing but tendered the letter carrying the card instead due to interjections. If appeal is the only way what are the likely costs and potential to succeed. I am currently out of contract since end of January but do have a mortgaged property. Can a no win no fee option work for me if all else fails. I was just disoriented at the time I offered the letter which the judge read and passed to the claimant's solicitor who could not comment. But the judge assessed it as a letter.
Are you able to advise on the above explanation or any other possible solution to my situation. I await your response.
Regards

[charitynjw]

Re: Appeal unenforceable debt ccj

I'm not sure whether there is a specific requirement under the CCA that the agreement must be signed to be enforceable (Diana might know) but under general contract law, just because an agreement isn't signed or dated doesn't mean that it is unenforceable - contracts can be entered into through conduct and provided both parties acted in accordance with the terms, then it can be implied by conduct that an agreement has been entered into.

Thanks, R0b.

As it appears to be a 2001 agreement, the original CCA 1974 as enacted will apply.
Quite often in these cases, s127.3 kicks in; if applicable, the court doesn't have jurisdiction.
After April 2007 the 2006 CCA gives the court discretion to make a judgment,

I guess we'd need to know exactly what legal arguments were made in this case & the basis on which it was decided.

[Jeed]

Re: Appeal unenforceable debt ccj

Thanks Rob and Charitynjw. I will scan some of ther documents for your perusal and opinion. Personal details are deleted as appropriate.

[Jeed]

Re: Appeal unenforceable debt ccj

Thanks again Rob and Charitynjw,

I must confess that I can not remember verbatim the basis of the decision as I was too shocked with what transpired. I raised a no of issues regarding the claimant's witness statement verbally as shown in the attached document. I also raised issues about the non-enforceable debt.
The Judge made a decision on balance of probability that lowell was able to proof that there was an agreement by virtue of the production of the copy of application and with regards to the assignment by virtue of the letter (which I did not receive) from Capital One informing that the Debt has been sold to Lowell. I still objected to acceptability of both but was too shocked and overwhelmed to make a more vigorous response. When I said I have a copy of the original agreement, there was an expression of surprise, I gave it to the Judge (The letter to which the card was attached referring to the agreement enclosed), after reading he passed it on to the Lowell representative who could not make any comment. However, the judge proceeded with the decision after saying the document was a letter. Was too shocked to respond as I had already seen a sign of withdrawal on Lowell representative's face. Anyway, that is essentially where I am with a CCJ that I doubtful of it's legality but not knowing what to do next and with very little financial means.

It appears that I have used up the maximum size of attachments and will try follow up with the additional docs immediately.
Many thanks for you help

[Jeed]

Re: Appeal unenforceable debt ccj

Additional documents attached

[Jeed]

Re: Appeal unenforceable debt ccj

I hope you will have the patience to read all document to get the gist of my saga and still be kind enough to advice on the best or most appropriate way forward that will be least costly.

[Jeed]

Re: Appeal unenforceable debt ccj

I have not slept for 2 days and now very tired, Please excuse me if you reply and expect an immediate/quick response. I will be back in the morning. Thanks and warm regards

- - - Updated - - -

What does s127.3 mean?

[Diana M]

Re: Appeal unenforceable debt ccj

I presented what I have and thought as the agreement but was told it is a letter. I guess I was overwhelmed by the judges handling of the case as he interjected my presentation a lot as not relevant and I should get what he is thinking. When the case finished and came out of the chamber, I realised that I only gave the letter to which the card was attached and not the copy of the original agreement that was also enclosed with the card. This was clearly the copy of the agreement unsigned and undated and I was advised to keep it in a safe place.

If you want to make an Application to appeal the judgment you will need a transcript of the hearing to go with it.

This will be necessary to support any argument you make that the DJ got it wrong (for whatever reason).

If you're only reason for believing that you should be granted an appeal is that you didn't show the DJ a document which supported your legal argument at the hearing (your mistake not the DJ's fault since he didn't have the evidence in front off him when he made his decision) then I'm not sure where this is heading.

However if the document you needed to support your argument was in the bundle (and referred to in your Witness Statement and Exhibited) then it's not unreasonable to expect the DJ to have read the file even if you didn't draw it to his attention at the hearing. You were a LIP without legal representation after all.

Transcripts take time (unless you're willing to pay extra for the 48 hours service) and may be a reason for not meeting the strict deadline for making an application to appeal.

When you get the transcript you'll be able to see whether the DJ made a legal error of judgement and/or whether the Claimant mislead the DJ.

Maybe he did. Maybe he didn't. But wanting to have second chance to articulate your case may not be an option unless the DJ erred in some way first time around.

Let's hope he did.

Di

[Jeed]

Re: Appeal unenforceable debt ccj

How do I request the transcript and how much does the 48hrs service cost. If there is a chance I am ready to try.

[Diana M]

Re: Appeal unenforceable debt ccj

How do I request the transcript and how much does the 48hrs service cost. If there is a chance I am ready to try.

Contact the court and ask them to send you a list of the approved transcribers and then complete the EX107 form which you can download here > http://hmctsformfinder.justice.gov.u...t_forms_id=161

Ring at least three on the list for quotes. Some are not VAT registered which makes them 20% cheaper.

Once the transcript has been produced it is sent to the DJ who presided over the case to approve (for errors not to edit it I hasten to add). This means that DJ will presume you're planning to appeal his decision, not getting the transcript as a souvenir, since you lost the case.

Before you go to that expense it may make sense to try to narrow down the legal issues to see if you have any likely prospects of success because you don't want to risk the legal costs of a failed application/appeal.

So are you wanting to appeal because you didn't produce the essential document in court (or in your WS evidence)? Was that document disclosed by the Claimant? Was it available to the DJ even if you didn't draw attention to it?

Or are you wanting to appeal because in hindsight you feel you could have handed things better on the day?

Or are you wanting to appeal because the DJ made an error of fact or law?

Di

[Jeed]

Re: Appeal unenforceable debt ccj

Thanks Di,

I am worried I can handle this going forward due to lack of experience and the risk of double whammy loss if mishandled again. Can you advise which of the reasons are most likely to succeed following my explanation and the documents that I supplied to the forum. Please help i think this is now too specialised for me and I don't want to mess things up and waste scarce resource on wild goose chase.

[Jeed]

Re: Appeal unenforceable debt ccj

Is there any hope based on what I have provided and explained?

[Diana M]

Re: Appeal unenforceable debt ccj

Try not to fret.

You seem to be both upset at the outcome and angry with yourself for not doing a better job in court. I'm sure you put up a good fight against a headwind of prejudice against 'debtors'.

So now you need to analyse what your options might be.

An appeal needs to be about a specific 'error' which took place in court on the day and which led to the wrong decision by the DJ.

Since you didn't ask the DJ for permission to appeal before he left the room, you will now have to ask the court for permission to appeal which means identifying the potential grounds for appeal first.

Di