Marlin/Mortimer CCJ HFC Marbles Card - Set Aside Help **WON plus Costs**

[Spamalot]

MC have replied...

 

They have marked my letter without prejudice because it involves settlement discussions...

 

They have decided that my defence is rubbish and the only reason their client discontinued was because of the default notice and so if I don't pay them what they want they are going to start fresh proceedings and isssue another one.. .... correct me if I'm wrong but doesn't a CCJ constitute a termination of an agreement??

 

They think my costs are over inflated and that they were justified in defaulting me twice on my credit file and giving me a CCJ for 6 months so I don't deserve compensation... I have until the 10th to pay up or they'll withdraw their kind offer....

 

Hmmmmm decisions decisions.....

 

Looks like the court are going to have to sort them out after all...:-|

 

Can't say I didn't try....

 

Onwards and upwards Spam.

[gh2008]

Don't know if you've come across this - I apologise for posting it here in full, but there seems to me to be many similarities

 

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

Somewhere I have a copy of the order made -

basically

claimant never to try and enforce again

remove all adverse credit info

and make an interim payment of £15k for costs!!

 

You may also like to point out to them that you will produce their letter as despite being headed WP it is not an attempt at genuine settlement, but rather just a cheap threat.

just because documents are marked “Without Prejudice”, unless they are intended to be part of a genuine settlement attempt they will not actually enjoy “Privileged” status and they will not be protected from disclosure.

[Spamalot]

Thanks GH... very interesting reading.. and extremely helpful..

 

MC have somewhat skirted the issue of the fact that the'agreement' is an application form... the assignment, according to the OC, was to Carval investors and not Phoenix.. ... and the two default notices served were both faulty... Both HFC and Marlin were marking my credit file for an unenforceable invalidly defaulted debt... I could go on... but quite frankly I can't be bothered to write back to them.... I'm actually looking forward to it going to trial and to producing the rubbish they've been sending me...

 

Btw, Something I ommited to put in my previous post was this little nugget...

 

' Further, the court accepted the assignment when it made an order substituting Phoenix Recoveries...et. as Claimant in the proceedings. There is no basis for arguing that the right of action does not belong to our client'

 

Strange comment seeing as they have been claimant all along in this case...

 

Not sure where they got that one from... making it up as they go along again by the looks of it..

 

Spam.

[foolishgirl]

 

They have decided that my defence is rubbish and the only reason their client discontinued was because of the default notice and so if I don't pay them what they want they are going to start fresh proceedings and isssue another one.. ....

 

Ha, ha!!

 

They think my costs are over inflated and that they were justified in defaulting me twice on my credit file and giving me a CCJ for 6 months so I don't deserve compensation... I have until the 10th to pay up or they'll withdraw their kind offer....

On which planet??

 

 

T I'm actually looking forward to it going to trial and to producing the rubbish they've been sending me...

 

...Not sure where they got that one from... making it up as they go along again by the looks of it..

 

 

Think you should start selling tickets for this hearing spam - you can bill it as The Comedy of Errors, everybody likes a good laugh.

[Spamalot]

Think you should start selling tickets for this hearing spam - you can bill it as The Comedy of Errors, everybody likes a good laugh.

 

I know... Monty Python couldn't have made a better job..

 

Ok... Here's my first stab at a reply to their drivel... as per usual, suggestions as to editing and content widely welcomed..

 

 

Dear Sir/Madam,

 

I am in receipt of your letter dated 3.2.2010, the contents of which are duly noted.

In reply to this particular correspondence I must point out that I do not perceive it to be a genuine attempt at a discussion of settlement, but instead, a ridiculously futile attempt to threaten me into paying monies to your client that are not legally due. Therefore, I will be disclosing this piece of correspondence to the court, as it does not warrant the privileges given under the heading of ‘Without Prejudice’.

 

Moreover, this letter would also appear to be an attempt to mock and undermine my abilities to research the Consumer Credit Act 1974, the Law of Property Act 1925, etc, Case Law pertaining to those acts and Civil Procedure Rules.

 

Fortunately, because I have spent so many hours researching these acts, along with many other aspects of litigation, I am in a position to know that your client cannot simply ‘re-issue’ a default notice and make another claim, as you have persistently tried to lead me to believe, because the alleged agreement has already been terminated. I would suggest that the author of your letter may like to spend a little more time researching these Acts him/herself to make sure that such a glaringly obvious mistake isn’t made again.

 

Furthermore, my defence does not rely solely on the issue of the default notice, and your clients claim is fatally flawed in many other aspects, but I am not prepared to be drawn into a discussion on this ‘fishing expedition’ as this whole chain of correspondence should be refering to the matter of the settlement of your clients liability to costs and compensation for bringing an unfounded claim to court, and subsequently discontinuing with the case.

 

As a result of your reluctance to make a serious and genuine attempt towards settling this matter outside of court, I have no option but to formally withdraw my offer and look forward to meeting your representative at trial, where the points you have raised will be fully addressed.

Thanks, Spam

[foolishgirl]

Hi Spam

 

You write some brilliant letters but IMO this one betrays your impatience with them & the name of this game is 'bluff' so you must be seen to be calm, cool & collected. I would suggest the following:

 

 

 

Dear Sir/Madam,

 

I am in receipt of your letter dated 3.2.2010, the contents of which are duly noted & I am sorry that you have not taken this opportunity to settle this matter.

 

From the comments in your correspondence, it is clear that you are ignorant of the statutory requirements in respect of the issue of Default Notices & I refer you again to the Consumer Credit Act 1974 & the Law of Property Act 1925.

 

I am not prepared to be drawn into a discussion through correspondence on the legal interpretation or application of these Acts as the primary intent of my offer was a settlement of your clients liability to costs and compensation for bringing an unfounded claim to court, and subsequently discontinuing with the case.

 

As a result of your reluctance to make a serious and genuine attempt towards settling this matter outside of court, I have no option but to formally withdraw my offer and look forward to meeting your representative at trial, where the points you have raised will be fully addressed.

 

[Spamalot]

Thanks again FG....Keeping me grounded as always:)

 

... I must admit their recent 2 page letter of nonsense and arrogant accusations did serve to rattle my patience with these imbeciles somewhat. ....

 

Anyhoo, your excellent and concise reply will be popped in the post later today and I shall start preparing for the hearing 3 weeks from today...

 

 

Spam.

[Spamalot]

Okey dokey... the Chuckle Brothers have been at it again...

 

Received today... One default notice signed by MCS 'on behalf of' Phoenix Recoveries... arrears to be paid in full by 26th February 2010.. (surprisingly it's the same date of the hearing for the set aside of discontinuance )...

 

Hmmmm what next me wonders...

 

Spam.

[humbleman]

Okey dokey... the Chuckle Brothers have been at it again...

 

Received today... One default notice signed by MCS 'on behalf of' Phoenix Recoveries... arrears to be paid in full by 26th February 2010.. (surprisingly it's the same date of the hearing for the set aside of discontinuance )...

 

Hmmmm what next me wonders...

 

Spam.

 

 

Any chance of posting that default, and can you check the pm I sent you.

[Spamalot]

Any chance of posting that default, and can you check the pm I sent you.

 

Hi Humbleman...

 

I will post it as soon as I can.. as far as I'm aware (apart from the fact that they can't issue a default on a terminated account:rolleyes:)it is not a valid one anyway because it doesn't come from the creditor....it is on behalf of them... basically another poor scare tactic.....and yes I have seen your PM .. I'm having a bit of a busy time at the mo but I will give you as much info as I can as soon as poss.

 

Spam.

[Craftygirl42]

Okey dokey... the Chuckle Brothers have been at it again...

 

Received today... One default notice signed by MCS 'on behalf of' Phoenix Recoveries... arrears to be paid in full by 26th February 2010.. (surprisingly it's the same date of the hearing for the set aside of discontinuance )...

 

Hmmmm what next me wonders...

 

Spam.

 

Well done Spam, you seem to be spooking them good and proper.

 

I am now waiting for my DN that they told me in a letter they can send once they discontinue my court case and waiting for it all to restart

 

You wonder who thinks up their threatograms and sorry to say, I wonder how many times it works for less empowered peeps

[foolishgirl]

....I wonder how many times it works for less empowered peeps

 

That's the problem - it works for the majority of people or they wouldn't waste their postage.

[robcag]

Okey dokey... the Chuckle Brothers have been at it again...

 

 

 

Perfect description Spam - love it!

 

Cheers

Rob

[texanbar]

Spammie, that made me 'chuckle' too! Love your words!

 

x:)x

[Craftygirl42]

That's the problem - it works for the majority of people or they wouldn't waste their postage.

 

But then they get confused by those who fight back and attempt to make it up as they go along, cos they dont read up on their requirements.

 

Dont you just love it

[Spamalot]

Well here it is... the long awaited default notice fom MCS on behalf of Phoenix Recoveries...

 

Default MC 1 picture by Spamalot_bucket - Photobucket

 

Default MC2 picture by Spamalot_bucket - Photobucket

 

And for Humbleman...

 

Letter of assignment From HFC picture by Spamalot_bucket - Photobucket

 

Spam.

[supasnooper]

Do you still have the envelope ?

 

What class of postage was used for the service of the DN ?

[gh2008]

Well here it is... the long awaited default notice fom MCS on behalf of Phoenix Recoveries...

 

Default MC 1 picture by Spamalot_bucket - Photobucket

 

Default MC2 picture by Spamalot_bucket - Photobucket

 

And for Humbleman...

 

Letter of assignment From HFC picture by Spamalot_bucket - Photobucket

 

Spam.

 

Oh dear lol

 

So the current creditor is a Company based in Worthing!!!

And HFC confirm they didn't sell it to Phoenix or Mortimer Clarke

 

The OP on another thread I'm on has recently SARd Phoenix at their registered address in Lux.

 

How about writing to MCS confirming receipt of *their* DN and inform them that, due to the confusion that there seems to be around the assignment and now the DN, that they have clearly written themselves however refer to Phoenix as 'we' and 'us' rather than 'our client' and the fact that you have heard no confirmation that MCS are indeed authorised to act on behalf of Phoenix, that you will be writing direct to Phoenix in order to clear up the confusion

[gh2008]

Thinking out loud here - wonder if, due to the complete lack of evidence that either Phoenix or MCS have *any* right to collect on this debt, it may be worth dropping that line into the hearing ........

 

After all HFC confirmed they sold it to a UK Co.

CarVal Investors, Europe

Knowle Hill Park, Fairmile Lane

Cobham, Surrey KT11 2PD

United Kingdom

Tel: +44 0 1932 861258

Fax: +44 0 1932 861558

 

Yet you have a solicitor pretending to be a Lux based Co taking you to court ......

[humbleman]

Well here it is... the long awaited default notice fom MCS on behalf of Phoenix Recoveries...

 

And for Humbleman...

 

Spam.

Thanks

[humbleman]

Well here it is... the long awaited default notice fom MCS on behalf of Phoenix Recoveries...

 

 

Spam.

 

That is someeeeeeeeeeee DN

[gh2008]

Telephone & Fax no. for Phoenix

 

Tel: +352 269757 1

Fax: +352 269757 97

[Spamalot]

Thanks guys..

 

They really have surpassed themselves this time haven't they??

 

At the mo I'm just waiting for the set aside of discontinuance hearing in two weeks, where I shall present all this info to the judge... then once the claim has been reinstated I shall have a field day... and hopefully take them to the cleaners..

 

Spam.

[foolishgirl]

Bullets & feet seem to come to mind!

[humbleman]

Spam

 

did they ever give you any t&c's.