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unlawfully rescinded,Hbos say they have acted lawfully


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Not wishing to hijack but I am in the same position.

2 accounts , a CC and an OD.

Both have been terminated before remedy dates on the DNs.

The CC account is being chased by Albion

 

I wrote to HBOS putting the CC account into dispute ...should I write to Albion also?

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Think the advice you're getting is very sound. The problem here, I think, is that you do need to respond and put them right on the legal issues, or at least offer them the benefit of your knowledge and keep a paper trail. By raising the issues with them in a courteous manner, you are showing yourself in a really good light should it ever get to court. Staying one step ahead is everything.

 

[An aside: I had one court case where the DJ asked me if I had a law degree (this was after the claimant's in-house solicitor had been given an absolute knobbing by me and him). Sadly, I didn't actually say it was CAG that taught me - but it did prove to me that you have to rise above the so-called professionals and their tactics. Just cos they have law degrees, it doesn't mean they know a lot! The combined knowledge of CAG is far more powerful, and I'll be eternally grateful for it. It helped me fool a judge :D]

 

not only is this sound advice for the reasons stated- when i gets to questions of costs- the judge will refer to the fact that you alerted them to the fact of the DN and its unenforceability pre trial and will award costs accordingly- he is also likely to make a direct reference to them "sailing close to the wind" in continuing to pursue the matter through the court

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  • 2 months later...

No real new developments,

been passed to westcott, saw them off easily enough, then to robinson way, again they retreated quickly, now ive got moorcroft on the case

 

They have been sent a letter telling them they are trying to flog a dead horse too and i will happlily see them in court if they want to contest the invalid dn :D

 

DB

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Think the advice you're getting is very sound. The problem here, I think, is that you do need to respond and put them right on the legal issues, or at least offer them the benefit of your knowledge and keep a paper trail. By raising the issues with them in a courteous manner, you are showing yourself in a really good light should it ever get to court. Staying one step ahead is everything.

 

[An aside: I had one court case where the DJ asked me if I had a law degree (this was after the claimant's in-house solicitor had been given an absolute knobbing by me and him). Sadly, I didn't actually say it was CAG that taught me - but it did prove to me that you have to rise above the so-called professionals and their tactics. Just cos they have law degrees, it doesn't mean they know a lot! The combined knowledge of CAG is far more powerful, and I'll be eternally grateful for it. It helped me fool a judge :D]

 

i agree- but it's not just about "showing yourself in a good light"- it is about making the other side aware of points of law pre ligitation that could come back and bit them on the bum during the trial

 

i reproduce the final paras of the costs order in BOS v Robert Mitchell June 2009 judge langan

 

 

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

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DD,

 

Agree with you re stating points of law in correspondence to them ,(but obviously only if the account as already been terminated) and think i will also add the last paragraph in your last post to any letters in the future on these accounts .

 

Each time these alledged debts get passed to a new dca i send them off a letter pointing out the invalid dn and the relevant case law ,copies of the dodgy dn and termination notice

 

Seems to be working ok for me , but sure one dca will try their luck one day by issuing court proceedings ,where i will defend to the hilt ,;)

 

DB

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i would suggest in that case, that you enclose the whole thing as so:_

 

I enclose for your assistance the approved judgement of Judge Langan in deciding costs in BOS v Robert Mitchell June 2009 and would draw your attention to the final paragraph

 

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 38.6.1:

 

"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

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DD, i actually have 3 accounts in total with hbos,

2 of them are for loans, (unsecured) the cca"s are fully compliant,just the DN"s that are invalid,

So the case law re cca"s being enforcable isnt really applicable to these,

 

DB

 

it doesn't matter

 

the judges comments referred to the fact they they had been made aware, pre trial on points of law (which would be equally applicable to the faulty DN's) and they chose to carry on regardless

 

 

it is also my understanding that the lawyers code of conduct prohibits them arguing a point which they know full well to be unarguable

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DD: "it is also my understanding that the lawyers code of conduct prohibits them arguing a point which they know full well to be unarguable", is that the same code that states the should not use documentation that they know to be false or misleading and not allow others to? Lawyers, like doctors, think they are above the law and disregard it when it suits them.

 

I had one issuing a dodgy DN on the back of a disputed app form even though OC had already issued a dodgy DN years earlier. Their response was they are allowed to do this and I am wrong. Not heard anything in 12months though :)

 

Subbing

Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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yep, but what does bring them up short is a letter to them quoting the codes of practice

 

as you say they get away with it because 95% of the population are unaware

 

once it has been pointed out to them in writing they do tread very carefully thereafter

 

(howard cohen excepted - of course)

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Hi DD

Thanks for posting the BANK OF SCOTLAND -v- ROBERT MITCHELL case, I have been racking my brians to remember this one, because OH's situation is exactly the same, and this will no doubt be useful in the not to distant future, robbers way appear to have handed back to HBOS:p

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