Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

Includes energy companies, mobile phone providers, retailers, banks, insurance companies,debt collection agencies, reclaim companies, secondhand car sellers, cowboy garages, cowboy builders and all the rest who put their own profits before you.

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Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

£19.99 + £1.50 (P&P)


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  1. #141
    Basic Account Holder NuggyPeach Novitiate



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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Okay, off to court, again, this afternoon, so wish me luck!

    Further to the last couple of posts, above, I contacted Kearns three / four months ago to point out the credit agreement with which they'd supplied me was not a true copy and they refused to enter into any dialogue. Had they done so, we might not be where we are today.

    That aside, as mentioned previously, the last court date was curtailed because the judge hadn't received a copy of their witness statement and, moreover, their advocate claimed not to have seen a copy of mine – something which Kearns have now conceded was simply not true.

    In these circumstances, should I win today, and I don't wish to tempt fate, would it be unreasonable for me to ask for the equivalent of two days' expenses – say 16 hours x 20 – in costs?! In actual fact, I've spent much, much longer than this preparing my case, but would just be looking for some kind of token payment to reflect the time and trouble the claimant has caused me.

    As ever, any thoughts you guys might have will be gratefully received
    NuggyPeach


  2. #142
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Good luck from me, NP. Please let us know how you get on either way.

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  3. #143
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Quote Originally Posted by NuggyPeach View Post
    Okay, off to court, again, this afternoon, so wish me luck!

    Further to the last couple of posts, above, I contacted Kearns three / four months ago to point out the credit agreement with which they'd supplied me was not a true copy and they refused to enter into any dialogue. Had they done so, we might not be where we are today.

    That aside, as mentioned previously, the last court date was curtailed because the judge hadn't received a copy of their witness statement and, moreover, their advocate claimed not to have seen a copy of mine – something which Kearns have now conceded was simply not true.

    In these circumstances, should I win today, and I don't wish to tempt fate, would it be unreasonable for me to ask for the equivalent of two days' expenses – say 16 hours x 20 – in costs?! In actual fact, I've spent much, much longer than this preparing my case, but would just be looking for some kind of token payment to reflect the time and trouble the claimant has caused me.

    As ever, any thoughts you guys might have will be gratefully received
    NuggyPeach
    Your also allowed 90 per day in loss of earnings if you had to to take time off to attend.

    Best of Luck NP.

    Andy

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  4. #144
    Basic Account Holder NuggyPeach Novitiate



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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Hurrah – I won!

    Truth be told, my head's a bit scrambled right now, however, I'll do my best to recount the most pertinent parts of today's proceedings.

    Firstly, I was a little disappointed to find myself up in front a different judge this time around – the last one had immediately put me at ease and, moreover, I thought I might get an opportunity to highlight the skullduggery Kearns' advocate had engaged in at the last hearing.

    Of more concern, while this judge was happy for my partner to accompany me, unlike the previous one, she made it quite clear he would not be permitted to lend anything more than moral support. At the same time, she also expressed some surprise that the person responsible for Kearns' witness statement had not seen fit to attend.

    I read a script, outlining the principal tenets of my case, namely:

    [1] The terms & conditions I had been sent did not belong to my credit agreement and, that being the case, it could not be a true copy and, therefore, could not be enforced until this was remedied;

    [2] Notwithstanding the above, the agreement was not properly executed because it did not contain all the prescribed terms and at the time this agreement was entered into s.127[3] of the consumer crediticon Act – which has since been repealed, though not retrospectively – rendered it irredeemably unenforceable.

    At first I was a little flustered and was concerned the judge, who conceded before proceedings began that the Consumer Credit Act wasn't her area of expertise and that she'd only got first glance at the respective Witness Statements in her lunch hour, wasn't entirely buying into my argument.

    Kearns' advocate then asked to cross examine me and this, I think, is where the tide started to turn. She seemed intent on pursuing a moral, as opposed to legal, argument – asking questions such as: Do you deny the existence of this debt? Don't you think you should repay it? – which I simply batted back, acknowledging that I'd had an MBNAicon credit card but making the point that, having looked into the legalities of the situation, it had become evident to me that MBNA / Link / Kearns had not observed due process.

    After a while the judge was persuaded that the prescribed terms were not present in their entirety within the credit agreement with which I had been supplied. At this point, I thought it was game over, pointing out that while s.127[3] of the Consumer Credit Act has now been repealed it was not retrospective and, that being the case, my agreement was irredeemably unenforceable.

    Unfortunately, or so I feared, the judge wouldn't accept that s.127[3] of the Consumer Credit Act didn't allow her to make an enforcement order on a pre-2007 credit card. To be fair, she did adjourn for 10 minutes to allow myself and my partner the opportunity to evidence that this was the case, but, while we were 100% sure that it was, in the time available, and with the court's decidedly average internet coverage, we were unable to do so.

    So, the judge proceeded on the basis that, despite the deficiencies with regard to the prescribed terms, it was in her remit to make an enforcement order. However, she took the view that I was more prejudiced than the claimant by this – how, she asked, could I argue my case if I didn't know what the missing terms were? – and, on that basis, dismissedicon the claim.

    She also agreed to a token payment of 50 in costs. The judge suggested our parking costs might also be added to this, but when Kearns' advocate started arguing about how long we had paid to park for I decided to be the bigger woman and forego an an additional 4 or 5 rather than cause Kearns' advocate any further distress, lol. That aside, the judge seemed slightly taken aback when she asked for 28 days to cough up.

    All said and done, I think this was the right result, though it was slightly disconcerting that I was unable to persuade the judge that s.127[3] of the Consumer Credit Act was apposite. To this end, I'd be grateful if someone can point me in the direction of something to which I could have referred in order to convince the judge of this... anyone?!

    No matter, the job's a good un so, it only remains for me to make a donationicon to CAGicon and, once again, thank all those – but especially Andyorch, dx100uk and RedPillGuy – who have contributed to this thread. Take it from me, I couldn't have done it without you!


  5. #145
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    well done

    IMO

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  6. #146
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Excellent NP well done great result.

    " All said and done, I think this was the right result, though it was slightly disconcerting that I was unable to persuade the judge that s.127[3] of the consumer crediticon Act was apposite. To this end, I'd be grateful if someone can point me in the direction of something to which I could have referred in order to convince the judge of this... anyone?! "

    As the Judge stated that the prescribed terms were not evident...and as DJ should be aware of what the PTs are in a credit consumer agreement...s.127 applies anyway pre or post April 2007

    127 Enforcement orders in cases of infringement ;-

    (1)In the case of an application for an enforcement order under—
    (a)section 65(1) (improperly executed agreements),

    (2)If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

    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).


    Section 61/65 is applicable even if she didnt agree sec 127.


    Anyway great result and well done for arguing the above points.Thread title amended to reflect the result.

    Regards

    Andy

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  7. #147
    Basic Account Holder NuggyPeach Novitiate



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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd *** Claim dismissed with costs***

    Andyorch et al

    It's not inconceivable I'm confusing myself now - my head is still spinning after yesterday - but it was my understanding that s.127[3] of the consumer crediticon Act 1974 was repealed by the Consumer Credit Act 2007 [though not retrospectively].

    Have I misunderstood?!
    NuggyPeach


  8. #148
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd *** Claim dismissed with costs***

    It's well established in case law that s127(3)-(5) do not give the Judge any discretion at all for an agreement executed before 6th April 2007 because if the agreement fails to comply with s61(1)(a) CCA 1974 then the Court has no power to enforce


  9. #149
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd *** Claim dismissed with costs***

    Quote Originally Posted by NuggyPeach View Post
    Andyorch et al

    It's not inconceivable I'm confusing myself now - my head is still spinning after yesterday - but it was my understanding that s.127[3] of the consumer crediticon Act 1974 was repealed by the Consumer Credit Act 2007 [though not retrospectively].

    Have I misunderstood?!
    NuggyPeach
    That is correct...its the retrospectively part that claimants try to mislead Judges in claims with...you can repeal legislation but you cant amend agreements already in force pre the repeal.

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  10. #150
    Basic Account Holder NuggyPeach Novitiate



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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd *** Claim dismissed with costs***

    Hi guys!
    I'm back again in hope of further guidance.

    As mentioned in post #144,
    when I went to court the judge note only ordered that Link Financial's claim was dismissedicon,
    but that:

    [2] Claimant to pay the Defendant's expenses of 50, payable by 4:00pm on 6 December 2017.

    Needless to say the deadline has now been and gone and I've heard nothing,
    less still received any payment, from Link
    – it's not the 50 I'm bothered about but the principle.

    That being the case, my question is how best do I go about making sure Link cough up?

    In the first instance,
    I'm minded to send them a strongly worded email,
    but I'd like to make clear in it exactly how I intend to proceed if they don't play ball pronto.

    I've done a bit of Googling and it seems a Warrant of Control may be a possibility,
    but I'm not entirely clear if this is an option for a defendant,
    as I was,
    rather than a claimant.

    Furthermore,
    at one point the following says a Warrant of Control can be issued for any amount up to 5,000 while elsewhere in the same document it suggests the amount being sought must be at least 600.

    https://www.moneyclaimsuk.co.uk/PDFForms/EX322.PDF

    As ever, any thoughts anyone might have will be gratefully received.
    NuggyPeach


  11. #151
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd *** Claim dismissed with costs***

    You cant use a Warrant of Control or any other execution methods...because you do not have a judgment...simply an instruction from the court that you are to be paid costs.

    You could make an application to the court and request a General Order pursuant to CPR 44.3.1 & 2a to force payment.

    Andy

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