Howard Cohen backtrack and admit reconstructed DN **WON**

[dizzyblonde1966]

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This thread is a follow on of another,But all the scans/documents in one place now for ease of reference

 

Basically its just here to show what legal companies /DCA"S can and will get upto /be capable of if reconstructing of documents is allowed etc,And for anyone who needs evidence that Cohens have misled the courts and abused process in the past.

 

Cohens submitted the first DN in their witness statement and claimed it was a copy of the DN sent to me ,Note that at no point in their witness statement do they even mention its a reconstruction ,but of course they were full well aware it was a reconstruction as they have since admitted they themself reconstructed it , they simply attempted to mislead the court and myself by claiming it was a "copy" of the default notice sent to me on 18th Nov 2008"

 

However they soon backtracked when i turned up at court with the original which was totally different,

 

More worryingly Cohens also later admitted to knocking it up on the original creditor headed notepaper themselfs too,

 

Below are all the relevant scans, the misleading witness statement from cohens claiming the dn was a copy of the one the creditor sent me (number 4 in their witness statement)

 

The copy of their dn, and directly underneath the true original sent to me by Ge money

 

And then lastly Cohens admission letter to both myself and the courts a few weeks later after ide showed the judge in court the true original which highlightly quiet clearly that Cohens werent being 100% honest in their witness statement,

 

Whode have though it hey, a legal firm trying to mislead the courts:-o

 

Cohens witness statement(number 4 the relevant section for the DN)

 

 

Howard Cohen reconstructed Dn

 

The true original DN from GE money,

 

 

Howard Cohen admission letter that it was a reconstruction and that they had reconstructed the DN in the witness statement from info provided by the original credit provider

 

Edited May 10, 2010 by dizzyblonde1966

[gaz2006]

thansk hope they squirm regards Gaz

[letsgetitsorted]

it just gets better...how can coherns do something illegal and try and get away with it.

[ski1382]

Good to see them having to admit to this disgraceful behaviour.

 

Forgive me though, does this not, as they say in their letter mean you have now admitted to receiving the DN and destroying that element of your defence?

 

As srandall88 says, it is disgraceful that they are trying to turn this deliberate attempt to deceive the court in their favour, but is that in fact exactly what may happen??

 

Good luck with it all, will be watching with interest as have a similar ongoing battle with HC at the moment.

[paulwlton]

IMO their blue peter antics falls foul of the Fraud Act 2006.

 

Point me to relevant legislation which allows a money lender to "recreate" a default notice?

 

Paul

[dizzyblonde1966]

Good to see them having to admit to this disgraceful behaviour.

 

Forgive me though, does this not, as they say in their letter mean you have now admitted to receiving the DN and destroying that element of your defence?

 

As srandall88 says, it is disgraceful that they are trying to turn this deliberate attempt to deceive the court in their favour, but is that in fact exactly what may happen??

 

Good luck with it all, will be watching with interest as have a similar ongoing battle with HC at the moment.

 

Ski1382

 

 

I never denied receiving the original DN,i simply put Cohens to strict proof i had received one ,

which then led to them knocking one up themselfs,so its fell right into my hands with their underhand/misleading some would even say fraudulent activities( give them enough rope and they will hang themself sort of situation) and thats exactly what they did

 

I was always going to reveal my original DN at court anyway, as its invalid as not set out in the prescribed manner,even the later one cohens knocked up is invalid as not enough days to rectify the breach,its quiet comical really isnt it, they knock a dn up and still cant reconstruct one that is in the prescribed manner, how hard is it to put a date on allowing 14 days after service

 

So my defence is exactly as it was before, no legible cca, and a dn that is invalid, and with the added benefit now of having cast iron proof that cohens have acted appalingly and showed total disregard to the courts by tyring to mislead them,so what else arent they telling the whole truth on, (you get my drift)

 

DB

[debtdebtdebt]

hi dizzyblonde,

 

What a result!

 

Watching this with interest - I am proceeding a claim with this mob, subtle difference was never served a DN at all!!!

 

As your DN is an admitted forgery they have at least mislead the court and you, wasting the courts time and require to be punished for this. With a sworn witness statement as to this being a true copy - this is illegal!

 

Do not assume the court wil arrive to come to this conclusion, waste no time in questioning their credibility and press for immediate strike with the most severe punitive action.

 

Many posts regarding invalid DN's - but check with ST member for more authoratative response on how to proceed now your DN has appeared. Could be a problem if that you have admitted you actually have the original. However I dont claim to be an expert on this (like you) best get an experts viewpoint;)

 

Good luck!!

Edited December 29, 2009 by debtdebtdebt
typo

[mkb]

Shame they couldn't even get the dates & amount to pay to match the original one!

 

Hope your entire case is thrown out & Cohens brought to book for this

[dizzyblonde1966]

hi dizzyblonde,

 

What a result!

 

Watching this with interest - I am proceeding a claim with this mob, subtle difference was never served a DN at all!!!

 

As your DN is an admitted forgery they have at least mislead the court and you, wasting the courts time and require to be punished for this. With a sworn witness statement as to this being a true copy - this is illegal!

 

Do not assume the court wil arrive to come to this conclusion, waste no time in questioning their credibility and press for immediate strike with the most severe punitive action.

 

Many posts regarding invalid DN's - but check with ST member for more authoratative response on how to proceed now your DN has appeared. Could be a problem if that you have admitted you actually have the original. However I dont claim to be an expert on this (like you) best get an experts viewpoint;)

 

Good luck!!

 

Dont worry im hell bent on cohens getting their knuckles rapped for this blatant abuse

 

Re the original DN, its invalid as doesnt specify a date to remedy the breach,although it does say 17 days,which would be ok days wise for service,but im led to believe they need to specify an actual date

 

Anyway there is no original cca, i already have that confirmed from ge money in a recorded telephone conversation,and cohens have broken pre court protocol from the start, ie no LBA , etc

 

Im going to get a letter typed up over the weekend and report Cohens to

The law society

Trading standards

The oft

The police economic crime unit

 

Im also considering seeking legal advice ,i have been advised i should qualify for legal aid,

 

DB

[paulwlton]

hi dizzyblonde,

 

What a result!

 

Watching this with interest - I am proceeding a claim with this mob, subtle difference was never served a DN at all!!!

 

As your DN is an admitted forgery they have at least mislead the court and you, wasting the courts time and require to be punished for this. With a sworn witness statement as to this being a true copy - this is illegal!

 

Do not assume the court wil arrive to come to this conclusion, waste no time in questioning their credibility and press for immediate strike with the most severe punitive action.

 

Many posts regarding invalid DN's - but check with ST member for more authoratative response on how to proceed now your DN has appeared. Could be a problem if that you have admitted you actually have the original. However I dont claim to be an expert on this (like you) best get an experts viewpoint;)

 

Good luck!!

 

I take it you only recently found the original default notice after searching the loft?

 

BTW the witness statement makes reference to "copy" not "true copy". A "true copy" of an agreement may be recreated under the 1983 regs pursuant sec 77-79. There's no statutory provision to "recreate" a default notice.

[DonkeyB]

It takes quite an 'admin error' to knock up a letterhead and add the text of a default notice. But I'd bet my bottom dollar that admin error or 'rogue employee' will be the defence of one of the most dishonest solicitors in the UK.

[paulwlton]

It seems words are being twisted. It appears you stated "it is neither admitted or denied that a default notice was ever received"

 

You therefore put the Claimant to strict proof, this would require proof of posting. By circumventing "proof" they twist things by claiming the default notice was in the correct form....not the response you required.

 

Paul

[dizzyblonde1966]

It seems words are being twisted. It appears you stated "it is neither admitted or denied that a default notice was ever received"

 

You therefore put the Claimant to strict proof, this would require proof of posting. By circumventing "proof" they twist things by claiming the default notice was in the correct form....not the response you required.

 

Paul

 

Paul, thats cohens for you, they like to play by different rules to everyone else,and they still dont know a compliant DN from a dodgy one,

the original DN is not in the prescribed format so cohens can twist and fudge the issue all they like ;-)

 

I wonder if their employee who knocked up their dodgy DN will get in more trouble from senior management for just recreating it, or for recreating it totally wrong and in a non prescribed format ;-)

 

Ive been making a few enquiries in the last hour or so and am now going to be seeing a solicitor later next week who specialises in consumer credit,to defend against cohens and hopefully to fight my case to the relevant authorities against cohens behaviour in trying to mislead the courts with their dodgy reconstruction,

 

Im also going to hold my letters of complaint off till i have seen the solicitor as im sure the solicitors will produce a much better letter than i ever could

 

Theres just one thing, i was going to apply for wasted costs from cohens if/when i won, they are currently at approx £300 as ive been to court twice now and spent many many hours researching the consumer laws etc, will i still be able to claim my wasted costs back if a solicitor takes over from here?

 

 

DB

Edited December 29, 2009 by dizzyblonde1966

[DonkeyB]

I think once a legal bod takes over, their costs will take precedence - costs can only be awarded to one person or organisation, I think.

 

The important thing is winning though.

[dizzyblonde1966]

I think once a legal bod takes over, their costs will take precedence - costs can only be awarded to one person or organisation, I think.

 

The important thing is winning though.

 

Yep agree, the winning is the most important factor,

I just hope they get the book thrown at them for their dodgy practices ,

Time will tell;)

 

 

DB

[letsgetitsorted]

Go DB, keep us updated on progress, wouldnt it be nice to have this firm suspended

[dizzyblonde1966]

Just a update on this case,

 

I sent Howard Cohens a letter by registered post giving them 14 days to respond and furnish me with the full name and position held of the employee who "recreated" the ge letterhead /default notice so i could supply it in my allegations i make to the police economic crime unit and the law society,the oft,trading standards etc

 

After waiting 18 days (alllowing for service) and receiving no response i rang them today to confirm they had received the letter (which i already knew they had received as i had the royal mail confirmation ) , it took a few attempts to get hold of the right person dealing with the account( bloody long dinner hours dont they the staff at cohens)

 

He then confirmed they had received it and claimed they had sent me a reply last week,

amazing isnt it how their letters demanding we comply always arrive on our doormat but this one never arrived l:eek:

 

Anyway not to be fobed off , i asked him to read the full content of their reply letter out to me over the phone , which he did,and they claim the DN reconstruction wasnt intended to mislead myself or the court blah blah blah and how i could settle now and avoid futher court costs as they were now going to be using the manchester test case judgements to proceed with my case,

 

 

Anyway I then asked him if it was legal to recreate a default notice, he was adament it was,but still refused to name the employee who had "reconstructed'" it,

 

So ive just composed my letters to the law society, the oft,trading standards,and made a point of stating cohens were being deliberately obstructive,

Im going to leave off the fraud/forgergy allegation to the police just for a few days as i have a meeting this week with a solicitor who is taking this case on for me, hes a well known name who specialises in consumer issues and several on here have used him with success and reccomend him,I am going to ask him how best to proceed with the criminal allegations of this fraudulent DN when i speak to him .

 

After furnishing the solicitor with full details of the case they were very keen to take it on, they have advised me legal aid is a viable option and we are going to be applying for that as soon as my bank statements for the last month arrive to prove income/expenditure etc ,They think it should be straight forward and be approved as im a low income family with children and i claim working families tax ,in the unlikely event the legal aid is refused they have already said they will act on a no win no fee basis ,

 

Going to get more interesting from here,

DB

Edited May 7, 2010 by dizzyblonde1966

[DonkeyB]

Hmm. Why do they think the Manchester case will help them? Idiots.

[gaz2006]

well your certainly no dizzy blonde well done Regards Gaz

[dizzyblonde1966]

Hmm. Why do they think the Manchester case will help them? Idiots.

 

Donkey, think its just scare tactics,but its wasted on me, i might be a woman but im going all the way with this,i have nothing to loose,

 

Ge money have already confirmed the original cca no longer exists,just an illegible copy, wonder if the same Cohen employee who recreated the DN , will be daft enough to recreate a new cca on creditor headed notepaper too;)

 

DB

[diddydicky]

thanks for the PM

 

dont forget to make your sol aware (if he is not already) that the DN they issued does not meet the time requirements

 

if posted 1st class you should haev had to 4 december and not the 2nd as allowed for in the DN

 

however posted 2nd class as it undoubtedly was, you should have been allowed to 8th December (2008)

 

Having already been untruthful in one respect the judge is hardly now going to take their word as to the method of posting so if you say it was received on mon 24th November (4 WORKING ) days after posting then i think that will be accepted

 

therefore the faulty DN did not give them a right to claim the benefits of s87 and thus they do not have a cause of action to demand sums not yet due under the agreement

[diddydicky]

I am a little confused by this thread:

 

as i understand the claimant relied upon a DN to support his claim which was (forgetting the fact that it was not like the one you had) clearly was seriously defective in time allowed and not in the prescribed format

 

yet the one you originally received gave ample time for remedy (i don't believe that the use of the words "within21 days" by themselves would have defeated the DN in court.

 

Why on earth then point out the descrepancy?

 

the one being used in court was all that was needed to bring the case crashing down as it gave no cause of action!

 

As i understand it, the creditor failed to comply with the s78 requirements therefore again - this means that he cannot take action to enforce the debt and could not have issued a valid DN

 

With regard to allegations of fraud, i would suggest that having wrested the moral "high ground" from your opponent in court by exposing the incorrectly re constructed DN - it would be foolhardy to start throwing accusations of fraud around in the court proceedings

 

 

Fraud is a criminal not civil offence and if you seriously believe that the INTENT can be shown then it should be reported to the police and not suggested in the civil trial where the judge will be none too impressed- and would certainly put you to strict proof thereof- if you don't even know the definition of fraud and the points to prove (which i suspect not many people do) then you will land yourself in serious hot water!

 

All you have is proof that what was purported to be a copy of the original DN- wasn't- this is a far cry from anyone being able to prove that the production of that document amounted to "fraud".

 

The OFT and the courts will readily support the "re -populating" of a blank document of the time of the original, with information from other sources (such as the creditors computer records) in order to show that what theDN would have been -

 

in this instance the solicitors alleges he produced what he was given by the creditor.

 

If you want to suggest this was not an accident and still accuse him of fraud you would therefore need now to prove a "conspiracy" to defraud between the solicitor and the creditor!

 

 

it is a word all too often hysterically used on the forum.

 

The following two cases might be of use , one concerns BOS not heeding the points of law put to them pre trial and which got them into very hot water with the judge for continuing

 

The other (persuasive) a clear decision that where s78 is not complied with (and illegible documents are non compliant) then the creditor may not enforce

Edited January 26, 2010 by diddydicky

[diddydicky]

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

[diddydicky]

MBNA -v- LYNNE THORIUS - SOLICITORS OPTIMA LEGAL SERVICES

 

*** TRANSCRIPT OF JUDGMENT APPEARS BELOW ***

 

Hope this is of assistance to CAGGERS who are having problems with documentation provided by MBNA or Optima.*

 

Some people might recall last Autumn the outcome of this case. It got quite a bit of media coverage at the time – just do a Google search on the phrase "Lynne*Thorius" and see what comes up.*

 

Google

 

I was tipped off a couple of weeks ago by a little birdy (or should that be, "little mole"…) "in the know" that the solicitors who took this case to trial were none other than our old friends Optima Legal Services Limited. This person told me that Optima had "dealt with" the case for MBNA. My understanding is that not surprisingly the outcome of this case was not received particularly well in the corridors of power especially when the BBC got wind of it and it was so widely reported!*

 

I am reliably informed that the sh1t hit the fan if you'll pardon the language!

 

Anyway, as this is the forum dedicated to problems with MBNA I feel myself to have a moral, legal or social duty to share the following observations and information with you as well as the judges comments.

 

I hope that this will assist in the event that any of you face similar issues or have doubts that the documentation you are being provided with is complete or correct.

 

First, note MBNA’s comment to the press here*http://www.guardian.co.uk/money/2009...stomer-refunds*and in particular the part which states*

 

"This case was brought by one of MBNA's agents who appears not to have been provided with full documentation. As such, the case was lost by MBNA, as MBNA was not able to rely on materials that it would ordinarily rely on in these circumstances. The case was not lost on any finding that there had been any unfair relationship." …..*

 

…… hmmm*

 

Well, I’ve since come into possession of a transcript of the judgment which is reprinted in its entirety below. The first observation is that regardless of any smokescreen put up by MBNA it is interesting to see from the quote above that MBNA seemed to be at pains to disassociate themselves by the emphasis that the case was brought not by MBNA but one of their "agents"! As MBNA were the claimant in the case and "brought it", the clear implication of the above seems to be that MBNA appear to be blaming their solicitors, Optima for either messing it up themselves or failing to ensure that the person they (Optima) instructed to present their case for them (Mr McGee) had all of the documentation.*

 

For what it’s worth, my opinion, as somebody who has worked in the profession is that the reason why the judge came to the decision she did was entirely due to what seems to have been a woeful lack of care in checking of documentation by Optima, the solicitors as it should have been relatively simple to establish and advise on the documentation required to prove the claim!

 

On the question of the MBNA Spokespersons assurance regarding the unfair relationship aspect…

"The case was not lost on any finding that there had been any unfair relationship."….

 

ACTUALLY, WHILST THE CASE LARGELY SEEMS TO HAVE BEEN LOST DUE TO WHAT SEEMS TO BE INCOMPETENCE ON THE PART OF THOSE RESPONSIBLE AT MBNA AND OPTIMA FOR PREPARATION AND EVIDENCE GATHERING AND FAILURE TO PROVIDE THE CORRECT TERMS AND CONDITIONS…. IF YOU MAKE THE EFFORT TO ACTUALLY READ THE TRANSCRIPT OF THE JUDGMENT IT IS CLEAR THAT THE JUDGE DID HAVE SOME VIEWS ON THE UNFAIR RELATIONSHIP POINT IN CONNECTION WITH CERTAIN ASPECTS OF THE CLAIM. HAVE A LOOK AT WHAT THE JUDGE ACTUALLY SAID ON THIS….. ITS AT PARAGRAPH 33-34 WHERE THE JUDGE FINDS THAT THE PPI CONSTITUTED AN "UNFAIR RELATIONSHIP" AND AT PARAGRAPH 37 WHERE SHE EXPRESSLY STATES THAT ON THE BASIS OF WHAT MBNA AND OPTIMA PUT BEFORE THE COURT, SHE WAS HOLDING THAT SOME OF THE CHARGES BREACHED REGULATION 5 OF THE UNFAIR TERMS IN CONSUMER CONTRACT REGULATIONS 1999.*

 

NOTE that Optima seem to have failed to produce any witness evidence for trial other than a witness statement by their own case worker! (see paragraphs 6, 13, 16, 22, 25, 37 and 38 of the judgment where the judge makes comments about the absence or shortcomings in the evidence).

 

Note also that Optima seem to have failed to spot that the terms and conditions in the bundle were not the terms which the card was taken out under and that the judge (a very aptly named lady.. "Deputy District Judge Smart") held true to the maxim that it is for the CLAIMANT to prove their case!

 

This is very important to bear in mind for anybody faced with a claim from MBNA, particularly as they almost never actually seem to send a live witness to give evidence at trial and seem to have great difficulties in production of documents etc. See in particular paragraphs 22 and 25 of the Judgment (and love the comments regarding the magnifying glass and the incompleteness of the documents, in particular this little gem of a quote at para 25)…*

 

"This is the trial and I am not prepared to make leaps of faith as to what was in the original agreement. This is not an unusual type of proceedings and it is not that difficult to produce the original contractual documentation, even if it is on microfiche"………..*

 

Absolutely delicious! The judges comments seem to be positively dripping with a mixture of disbelief and incredularity.*

 

It seems crystal clear that the solicitors seem not to have checked the evidence thoroughly before sending it to court. The judges comments would seem all the more scathing when you consider that Optima seem to have done much work for MBNA in debt recovery and had been doing so for years!*

 

See also the comments made at paragraphs 42-44 of the judgment regarding MBNA and their non compliance with Section 78 Consumer Credit Act 1974. I think that the general thrust of those comments continue to be correct after Carey –v- HBOS as there is no way that you can properly argue that the 2009 conditions which would be clearly marked as being so, would have applied to an agreement taken out beforehand.

 

It is only a*County Court*case and, as such is not precedent setting but it is going to be persuasive for any*County Court*cases with similar issues and is well worth reading, printing out and referring to if anybody is facing a situation where the claimant has not produced all of the contemporaneous documentation and seems to be relying on a different set of terms and conditions than the ones in force at the time of the contract… it is for the claimant to prove their case and, if they are advised by Solicitors, there can be no excuse for any shoddiness or gaps in presentation of their evidence or the documentation.*

 

It always surprises me that some solicitors are not as robust in advising their clients of the pitfalls in pursuing claims on the quality of evidence they have as they should be. I remember when I was working in the business I always was a pain in the a*se with my clients being, as I was, something of a stickler for attention to detail. One of the first things I checked was that the terms in my possession were the ones which had actually governed the contract. I also used to actually read the damned things and cross reference the documents to ensure that there were no gaps or that any gaps could be explained.*

 

Part of ones duty in being a solicitor is to recognize when your client is on dodgy ground and advise accordingly. It is interesting that the claims company who acted for Ms*Thorius*are at pains to stress that the other cases they dealt with in similar circumstances settled before coming to court which would suggest that the solicitors may have advised their clients to take a pragmatic view and to cut a deal rather than risk coming a cropper at trial!

 

As an aside, the Whistle Blower who is somebody on the inside track at Optima also tells me with some glee that these same solicitors may have recently came unstuck again in Geordieland on an unrelated matter (suing a conveyancer for alleged professional shortcomings). Can’t put up any party details here unfortunately as it is irrelevant to MBNA but if nothing else though, it shows that the judges in the North East are well clued up and not afraid to adhere to the maxim "it’s your claim….. prove it" even if the claimant is represented by a top 100 firm of solicitors!

 

Anyway, the transcript of the Judgment is below but, just one last observation.*

 

Capita.... major PLC and massive investment in Optima.... publicly accountable to shareholders etc.... £40,000,000 well spent? (see footnote 2)http://www.capitareport2008.co.uk/ac...ts/note15.aspx

 

Enjoy.

 

IN THE NEWCASTLE-UPON-TYNE*COUNTY COURT

The Quayside

Newcastle Upon Tyne

NE1 3LA

Date: 21st September 2009

Before:

DEPUTY DISTRICT JUDGE SMART

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Between:

MBNA EUROPE BANK LTD. Claimant

- and -

MRS. LYNNE*THORIUS*Defendant

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

APPROVED JUDGMENT

Tape Transcription by Marten Walsh Cherer Ltd.,

1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.

DX 410 LDE

Telephone: 020 7067 2900. Fax No: 020 7831 6864

DEPUTY DISTRICT JUDGE SMART:

 

1. This is a claim by MBNA to recover a total debt of £8,396.90 under a Sunderland FC MBNA Credit Card.

 

2. The sums claimed comprise:

(a) what I shall describe as "capital borrowing"; the purchases and cash advances;

(b) "interest";

© "standard charges" such as late payment fees and administrative expenses;

(d) Monthly payments for payment for Payment Protection cover ("PPI").

 

3. It is for the Claimant to prove on the balance of probabilities the prima facie

contractual right to recover the sums claimed.

 

4. Thus the Defendant invokes specific statutory protection and remedies of:

 

(i) An unfair relationship under section 140A Consumer Credit Act 1974 as amended, which when established results in the court having the flexible powers of intervention under section 140B Consumer Credit Act 1974;

 

(ii) In relation to the levying of charges, Regulation 5 of the Unfair Terms in

Consumer Contract Regulations 1999, which has been held as capable of applying to such charges (as falling outside the core obligations) at first instance upheld on appeal by the Court of Appeal in Abbey National PLC & Others v. Office of Fair Trading [2009] EWCA Civ 119, [2009] 2 WLR 1286; and further argues

 

(iii) in relation to the PPI Claimant was or should be treated as, or in the same position as a broker or equivalent ("ad hoc") fiduciary relationship and concealed (in the sense of did not disclose) commission, so that Defendant is entitled to rescind the PPI transaction

 

(iv) in breach of section 78(1) Consumer Credit Act 1974 Claimant failed upon

request of Defendant to provide the documents as required by that section and

accordingly its right to enforce the consumer credit agreement is suspended.

 

THE AGREEMENT

 

5. The Agreement was signed by the Defendant on 6th July 2002 when she was visiting Sunderland FC Shop to buy Christmas presents for her son who was a keen Sunderland supporter. She went at that time well in advance of and to avoid the increased demand for items closer to Christmas. She too was a loyal Sunderland supporter.

 

6. The Defendant was the only witness to give evidence. She was an extremely honest witness, completely without guile, who answered all the questions put to her in crossexamination immediately and directly, readily and maturely accepting the responsibility for the decisions she had made in relation to taking out the credit card. I accept her evidence in its entirety.

 

7. Her evidence was that she was approached by a sales person to take out the credit card and originally declined. The sales person was persistent and she was followed round the shop and pressed again. She was told (paragraph 3 of her section witness statement) that she could save money in the shop. She was told that she did not have to keep the card. Eventually she agreed and signed up. She said "Sometimes it is easier to do that with these people to shut them up."

 

8. The original Agreement, to the extent that it has been reproduced, is in the trial bundle at pages 56-57 (with a more legible version of the front page at page 231).

 

9. It includes personal details of the applicant (2), employment details (3), financial details (4), and a "Principal Cardholders Request and Declaration" which concludes with a request for the issue of a credit card including:

 

"I agree to be bound by the MBNA Credit Card Terms and Conditions and I understand I will be responsible for paying any balance due on my credit card account."

 

10. No document headed or described "MBNA Credit Card Terms and Conditions" has been produced, no document described specifically as such. The document at page 57 of the bundle is headed "Financial and Related Conditions". Under that is a reference to the MBNA Credit Card. It is very probable, and I find, that this is a reproduction of what is on the original, on the reverse of the original Agreement reproduced at page 56 of the bundle. In the absence of proof of any other documents satisfying the description, I find that is "the MBNA Credit Card Terms and Conditions". This will become important later.

 

11. The Defendant was asked on that occasion if she wished to take out payment protection insurance ("PPI"). She declined and in the box "no" was ticked under "5. Payment Protection Cover". At the time of taking out the credit card her gross income was £10,000. She had a clear credit record. She had not previously had a credit card, had no substantial debts, no County Court judgments, and her only experience of credit, she said, was a catalogue account. On the other hand, I am satisfied from the evidence she was not vulnerable. She knew what a credit card was. She knew what PPI was.

 

12. The subsequent steps in relation to using the card required that she telephone to activate it, which she did. She said in evidence that payment insurance was mentioned at that time, but she does not accept that she agreed to it being taken out. That appears to have been on 31st July 2005, only some twenty-five days after the agreement was signed.

 

13. There has been produced by the Claimants (through the statement of someone who is actually the case worker at the Claimant’s solicitor’s office) a computer record with very limited information on it. I heard no direct evidence from anybody from the Claimant. The computer record refers to thetelephone call*being for activation of the credit card and a standard record of the PPI being sold. So far as that conflicts with what the Defendant’s evidence is I accept the Defendant’s evidence. I do not accept that when she activated the credit card she agreed to take out the PPI which she had rejected only some twenty-five days earlier.

 

14. Her evidence is that she noted she had been charged for PPI and she noticed it on the credit card statements. She initially discussed it with her partner and did not challenge it because she thought at that price there might be a certain benefit on that. But the payments increased as her liability did, and she made a further*phone call*to the Claimant in which she challenged it and effectively sought to terminate the PPI policy.

 

15. Her evidence of that occasion is that she was told that she had to have it. She could not have the credit card without it. That was her understanding of the conversation. What is quite clear from her evidence is she did make such a*telephone call*and it did not result in the Claimant cancelling the PPI, which was the purpose of the call. What she said specifically in her evidence was that she was told she had to have the PPI and she would not have got the credit card without it. She did not know the law. It is clear to me that she understood from that conversation that she could not cancel the PPI and that she had to have it.

 

16. There is no evidence from the Claimant to rebut the Defendant’s evidence. There is nothing but a computer record, unsupported and unexplained even as to the circumstances in which the record of the sale of PPI would have been put on the computer file.

 

17. In the light of that, I find that there was no contract in relation to the PPI. The fact that it was charged for against a background of making minimum payments in my view cannot constitute an acceptance of the liability to make those payments. There is a further difficulty in relation to that in my view. It would have been a fundamental variation in the contract as originally taken out; that such a variation goes not as to amount to anything chargeable under a head previously agreed but introduced a new head of payment. If it was a term of the consumer credit contract (as benefiting the creditor), to actually vary that agreement there would have to be compliance with the Consumer Credit Act Regulations. (I also have that in mind in relation to fixed charges.)

 

18. The PPI was probably not a part of the consumer credit contract, rather a separate contract, but related.

 

19. However, I am not satisfied on the evidence before me, bearing in mind that the Defendant has given what appeared to be consistent and logical evidence of the steps taken against the background of someone who had originally declined PPI, that the Claimant has established a contract entitling it to recover for that insurance, and it is no answer to say, well, she has got it so she should have paid for it. She did not want it. I am not satisfied that there was an agreement to take it out. On the contrary, the charging of the payments continued on the basis of her understanding of information which was incorrect when she tried to stop further payments being added to the account.

 

20. After those phone conversations the monthly statements continued to be provided. She made the minimum payments. The original credit card limit was £1,500 and over the subsequently years those credit limits were increased, I accept unilaterally, in the sense that those increases are offered by the creditor and unless there is opposition to them they are activated. But I do accept also that it is entirely open to the person with the credit card to actually respond back and say they want the credit limit restored as it previously was.

 

21. The Defendant did use the credit card. She did use it with the benefit of the increasing limits. She maintained minimum monthly payments at least, and the bank statements evidence a significant increase in, shall we say, capital indebtedness even before we get to the charges being added, until 2008 when she struggled, because of a reduction in her income where her employment circumstances changed and her hours reduced, to maintain the monthly payments. That is the crystallisation ultimately of the Claimant commencing proceedings.

 

22. Prior to the commencement of proceedings on 19th December 2008 the Defendant’s solicitors requested documents under sections 7 and 8 of the Consumer Credit Act 1978 enclosing the appropriate fee required under those sections. The response was sent on 20th January 2009. For the purposes of this hearing in relation to the request it sent a copy of the signed Agreement and the current conditions, that is, the conditions current in 2009. So far as the Agreement is concerned, in 2002, the crucial documents, and the only ones anybody can point to, are at page 56-57 in the bundle. The current conditions on the face of what has been provided are different to the 2002 conditions.

 

23. Dealing with the various issues raised, this is necessarily a summary of my reasons.

 

24. Firstly, in relation to the terms formulated in the Agreement, I have dealt with that previously.

 

25. So far as the fixed charges are concerned the Claimant has not proved a contractual term entitlement to recover them, that is the default charges and the charges for legal and administrative expenses. The evidence before me of the original contract is at pages 56-57 of the bundle. That is what the Claimant has produced, and doing the best I can with a magnifying glass to read the conditions, which I do find must have been what is on the reverse of the original Agreement, what has been provided is incomplete and does not evidence any entitlement to recover fixed charges. It deals with interest and the minimum payments and the ability of the Claimant to suspend them or reduce them, but it does not deal with fixed charges. There clearly was more

to the Terms and Conditions than that, because if you read on the first page the reference to the Conditions under "Data Protection" the person applying is actually directed to Condition 11 -- there is no Condition 11 -- and the power to make conditions attached to that. Quite clearly that document is not complete. The Claimant has to prove it. This is the trial and I am not prepared to make leaps of faith as to what was in the original agreement. This is not an unusual type of proceedings and it is not that difficult to produce the original contractual documentation, even if it is on microfiche. Therefore in any event on the evidence before me today, the standard charges have not been proved as recoverable.

 

26. So far as the Claimant tries to rely, effectively as a course of dealing, on the statements produced from time to time, that is one thing in relation to the amounts claimed; it is quite another in relation to a heads of charge that the Claimant is entitled to recover. If you cannot prove the original contract you have got to prove entitlement as a variation, and variations of the Consumer Credit Act in material particulars have to be established by notice served under the Consumer Credit Act. It is also limited in its scope where it can apply. None of that has been established before me having regard to the sums claimed in reliance solely on the credit card statements.

 

27. The interest rates are covered under the terms and conditions, and as far as I can see from the extracts of the original Terms and Conditions, the ability to vary them from time to time. In so far as the contract is concerned, on the question of proof before me today the Claimant is limited to the provisions in the actual sections of the credit card conditions it has produced.

 

28. Similarly, in relation to the PPI, so far as it might fall within the standard "Terms and Conditions", the sending of the documents in relation to the sums which have been challenged do not in my view establish a contract for payment, even when those statements have been produced for a length of time.

 

UNFAIR RELATIONSHIP

 

29. I then move on to the question of unfair relationship. This is relied upon by the Defendant, effectively to challenge the whole of the Consumer Credit Agreement and the PPI. This was an ordinary credit card agreement. It is with one of the High Street lenders. It is not a sub-prime lender. It is not an unlicensed lender. It has not been targeted at vulnerable categories of consumer. It was being proferred in a store with related benefits, albeit a store to which a customer might exhibit some loyalty. Before we get to specific elements of it, the general structure of the obligation is one where all or none of the credit can be used. The structure of the charging provisions, charging interest on capital not so paid with no period of credit given, or the amount

of credit given, even if I found the clauses proved in relation to standard charges, was not out of line with regularly undertaken such credit agreements. It is an agreement where the person undertaking it is free to cancel it at any time, albeit repaying the balance. I do not regard the nature of the agreement and the circumstances of its selling of itself as something which resulted in an unfair relationship between the Claimant and the Defendant.

 

30. If any finding was likely to be operative in relation to this, there is one aspect of this in respect of which I would be prepared in this context to say that there was an unfair relationship. Going to section 140(a):

 

"The court may make an order under s. 140(b) in connection with a credit agreement if it determines the relationship between the creditor and the debtor arising out of the agreement is unfair to the debtor because of one or more of the following:

 

any of the terms of the agreement, or of any related agreement."

 

31. I would take that view, in this particular case, in respect of the related agreement, which is the PPI agreement.

 

32. The Agreement actually encourages acceptance of the PPI by the debtor. It does so on the face of the application for payment protection cover --

 

"Safeguard your payments against life’s unpredictable events

with our Payment Protection cover for just 68p per £100. Our

payment protection cover is designed to protect your ability to

make repayments of your MBNA credit card in the event you

are unable to work due to accident, sickness or involuntary

unemployment …. We strongly recommend you take out this

cover. For cover just tick the ‘yes’ box to confirm that you are

eligible and have read and understood the terms and

conditions."

 

33. There is no evidence the terms and conditions of the cover were actually produced or available at the time somebody was invited to take out the payment protection cover. There is a strong encouragement to the person signing the form in terms which I do not think can be regarded as a mere puff in the context of the explanation in the Agreement of the benefits of that PPI. That would not in itself, in my view, be enough for a challenge; but what the Agreement does not explain is that there is a benefit to the Claimant from commission, which is undisclosed, and they are in a position where it is in their interests to get the particular debtor signed up. So effectively at the time this agreement is entered into there is a lack of transparency of the relevant positions of the debtor and the creditor of the terms of the PPI and not enough information provided for the debtor to be aware that the Claimant has a financial benefit from this. That is in a context where there is also no explanation of the freedom to look elsewhere.

 

34. When you are able to look at PPI as in this case as a linked transaction, or particular terms of a contract, I take the view that in respect of that particular part of the transaction there was an unfair relationship. But if I was considering the remedy for that, I would be considering the benefit to the Claimant compared to any detriment and benefit to the debtor. I would take the view that the debtor has not been encouraged to look round. I would also take the view that the financial benefits to the Claimant have not been disclosed. I would have regard to a proportionate order, and it seems to me glaringly obvious in this particular case that an appropriate order would be the restoration of one of two things: either to rebate the premiums or to set

off the commission against the premiums. But that of course would only be relevant if I found that the PPI had effectively been entered into. And it is unnecessary to go further into the question of an unfair transaction and remedies because of my findings on the issue of imposition below. I should add that on the issue of unfair relationship it is accepted by both counsel that because of the unique nature of the transitional provisions applied to an application made after the transitional one year period, the relevant provisions can apply to the Agreement and PPI in this case.

 

35. I turn to the Consumer Credit Regulations. I have already referred at the start of the judgment to the fact that in principle it has been held that the nature of the provisions in relation to fixed charges fall outside the core terms in relation to provision of credit so that they can be considered under Regulation 5. Terms which may be unfair are those which require any customer who fails to fulfil his obligation to pay a disproportionately high sum in compensation. Under Regulation 5:

 

"A contractual term which had not been individually negotiated

shall be regarded as unfair if, contrary to the requirement of

good faith, it causes a significant imbalance in the parties’

rights and obligations arising under the contract to the

detriment of the customer."

 

36. There are two elements to that. First, there has to be a significant imbalance in the parties’ rights and obligations arising out of the contract and that imbalance is to the detriment of the consumer; then, second, that has got to be contrary to the requirement of good faith. In relation to fixed penalty charges, putting it very broadly, they are fixed sums imposed, in this case starting at £25 and then reducing to I think £12.50, in two types of circumstances. The first is where somebody has not made the minimum

payment by the due date, the second, where a credit limit has been exceeded. That means that the same amount of money can be recovered whether somebody is one day late or twenty-eight days late, whether the amount due under the credit agreement is £5 or £5,000, and where a credit agreement is exceeded by £1 or by £1,000. On the face of it that operates disproportionately between the detriment suffered having regard to the extent of the breach of obligation by the consumer and the amount of charge to be paid by the debtor.

 

37. The question is whether that occurs contrary to the requirement of good faith. Good faith appears to be a nebulous concept applied to ensuring that terms are balanced between the Claimant and Defendant. I take the view that a threshold of breach of regulation 5 has been raised in relation to fixed penalty charges of £25 and later on, more significantly, £100 or more in relation to legal and administrative expenses. I am in a position where the Claimant has not led any evidence or provided any explanation to counter the rigidity of the effect of those charges on the debtor. For the purposes of this particular case in the state of the evidence before me I would incline to the view that those charges -- that is in the alternative to whether or not they are contractually binding -- do breach regulation 5. I make it clear I am confining my decision to this case and the state of the evidence before me. The unfairness extends only to that term, and therefore the remainder of the contract is binding between the Claimant and the Defendant.

 

38. If I were looking at this particular contract in a more general context (and we were considering a particular contract and for example minimum payments of £85.15 late payment of which would allow imposition of a £25 charge) it may very well be the case that over the general operation of fixed charges over the life of credit card agreements it could be established by a balancing exercise, certainly at a reduced rate of £12.50, that fixed charges are not out of line with the cost and reasonable compensation to the Claimant for a breach by a debtor. But I have got to deal with this case on the evidence and information that has been put before me. In fact it is unnecessary to determine formally that point because I found that on the evidence before me it has not been proved that there is a contractual entitlement to recover those sums.

 

BREACH OF FIDUCIARY DUTY

 

39. The next point that has been raised is, was there a fiduciary duty such that there is an obligation on the Claimant to inform and to advise as to commission? The only evidence that the Defendant can point to in this case is the encouragement to take out insurance and her assumption that that was advice and that was advice being given to her in her interests. I am quite satisfied in this case that the Claimants are acting as agents for the insurers. The contractual provision and encouragement is not in my view sufficient to constitute an assumption of responsibility towards the Defendant; nor in any more nebulous form to be a situation in which the court ought to impose an

ad hoc agency or fiduciary relationship between the Claimant and the Defendant. That would be pushing the factual situation far beyond the bounds of the arm’s length transaction between a creditor and a debtor. It was, if anything, a matter to be dealt with under the allegation of unfair relationship in relation to a related transaction.

 

40. I have dealt with the points above going beyond the question of contractual entitlement because I have been asked to do so.

 

41. However, there is a final crucial matter that has been raised which bears on the Claimant’s entitlement to recover, and that is whether or not there has been provision of appropriate information under section 78 of the Consumer Credit Act.

 

42. It may be very simplistic, but I take the view that it is obvious that the appropriate information was not provided. Section 78(1) states in terms that where the request is given in accordance with that section on payment of the requisite fee the creditor shall give the debtor a copy of the executed agreement, if any, and of any other document referred to in it.

 

43. In this particular case the consumer credit agreement refers to the "MBNA Credit Card Terms and Conditions", and there is a partial reproduction of those on the back page which clearly is not complete. The subsequent response to that request provided a copy of the Agreement and the current credit card terms and conditions. It is clear in my view, having regard to the purpose of section 78, to provide the debtor with the information to enable her not just to assess the day to day statement of account and calculation of the liability, but actually the compliance, at the stage the contract was taken out, with the elements of the Consumer Credit Act, and also the heads of liability which could be claimed by the creditor, that in this particular case the documents provided fall short of the statutory requirement and specifically do not include the original terms and conditions referred to in the Agreement. That has become important in this case because of the claim to contractual entitlement to the fixed terms and charges. Without the complete terms and conditions it is impossible for the consumer to assess whether or not those charges are recoverable under the original contract, before you get to any question of entitlement to recover them having regard to any provisions of the Consumer Credit Act.

 

44. Accordingly, I take the view that section 78 has not been complied with and the contractual entitlement to recover the money claimed has been suspended prior to the commencement of proceedings, and remains suspended, pending full compliance with that section.

 

45. On the basis of that last element of my decision there has to be judgment for the Defendant.

46. I make it clear that if I had found section 78 complied with, I am satisfied in this case that the original capital is recoverable, by which I mean the purchases and the cash advances, that there is clearly a scheme of recovery of interest proved under the original agreement and that the interest would be recoverable including as varied.

 

47. The result of my decision is that the Defendant has won on a little, but merely postponed liability for the majority

[dizzyblonde1966]

DD, let me explain best i can, firstly there is no valid cca for this alledged debt,only an illegilble application form missing all the prescribed terms, and ge money have already confirmed the original is no longer available

 

But yes the dn cohens reconstructed and submitted was defective on the date, but as we know its all down to the judge lottery, there are many cases on here of judges disregaring the time for service etc, i couldnt just pop up on the day with the original,as cohens would have argued i hadnt disclosed it earlier in my defence for inspection,.

 

I though it was more important to show Howard cohens were being deceitfull and trying to mislead the court and the only way to do this was to compare the 2 documents in my defence . as another poster points out there in no statutory provision for anyone to recreate a default notice, so it was important for me to show cohens had submitted a legal document and claimed in a sworn witness statement that it was a copy of the riginal when they knew it wasnt,now lets make this crystal clear, this wasnt a simple clerical error. ge money confirmed to me they never issued cohens with a copy of the dn as they didnt have one, so someone at cohens recreated a ge money letter head and then knocked up the text, now the text ,dates and amount to remedy was wrong anyway,so ide like to know why if cohens got the data from the original creditor, so how can cohens possible say they werent trying to deceive,mislead or act unlawfully,? they blatantly lied to the courts

 

So howard cohens submit it in a sworn statement, and then have to backtrack, now if what they have done doesnt amount to fraud what does it amount to, if i knocked up a letterhead and added text and sent it to the court in a sworn witness statement as a copy im sure ide be hauled over the coals,

If this ever goes before a judge you can see the angle were going to go for, they have already proved to be untrustworthy/deceitfull in a sworn witness statement, what else are they capable about misleading about ,

 

 

 

DB

Edited February 26, 2010 by dizzyblonde1966