Storecard Claim served - what now? ** SUCCESS**

[gh2008]

lol

 

pick me up off the floor ..........

 

someone pleeeeeaaasse ...........

 

[gh2008]

I will invite some others to collaborate on a nice letter

 

As that letter is not negotiating a settlement it is also not priviledged and therefore can be brought before the court.

 

oh dear oh dear

[gh2008]

Ok as it can be said that the other side has attempted to deceive the Court by at the very least no correcting a knowingly false statement, and at teh worst knowingly making a false statement. Together with the fact that the letter with their phone call yesterday are certainly not trying to 'settle the matter' in fact they are promising further action!!!

 

What I am rambling about is that there is no way IMHO that this letter can be legally privileged and you should therefore be able to use it as evidence.

 

I feel a result coming your way

[Pumpkinhead]

I reckon the employees at the Muppets Sols would be better off joining the circus - at least then they could work with professional clowns!!!!!

 

I work within HR and my understanding of the ability to use Without Prejudice is that a "dispute" must first exist. Well, yes I suppose a dispute does exist between them and me. I would also expect a WP letter or meeting to offer some kind of positive incentive to the employee or defendant as in my case - what's in it for me???? This then gets negotiated and the outcome in HR cases is usually a compromise agreement.

 

Why do they think I would sign up to something that didn't offer anything positive in my favour? Ohh I forgot........ they're Muppets!

[gh2008]

There's no rush to reply - let's construct the killer letter next that will tell them exactly where they stand. I love the bit about urging you to get legal advice lol - can they suggest anyone

 

So are they now saying they didn't say cut up the cards lol

 

Start totting up your hours spent @ £9.25/hr and literally the hours spent researching etc as you are a LiP

Also need all your reasonable costs, paper stamps even petrol and time to take papers to court.

[MandM]

I love the bit about urging you to get legal advice lol - can they suggest anyone :grin:

 

Bryan Carter springs to mind lol.

 

Hi PH, just had a quick read through and this lot seem to be getting silly beyond belief! (I had other words in mind but Cagboot might catch me ). I like the way they've even prepared the paperwork for you lol.

 

As gh has so kindly pointed out, this does not even resemble settlement so you can use that letter to kick them back with.

 

Will be popping on later when I get home and join in the fun.

 

This is all looking good.

 

M

[Pumpkinhead]

and of course extra time has been taken because of having to do everything in duplicate as they served papers on both of us, plus husband having to take time off work etc to sort out with me ................

 

I'm sure this is going to end up with them owing me. The original debt was huge anyway!

[gh2008]

lol - the penny hasn't quite dropped for you yet ph

 

Ok, a little more black and white

 

They've messed up big time so legally, as of the point of termination of the account, you do not owe them a penny - they will have to write off the balance. There is High Court precedent that basically says if the creditors can't be bothered to follow the law then the credit given is considered a freely given gift to the debtor.

 

 

 

Now, as they took you to court in error they will have to pay you

the £41 paid for Oct as they had already terminated the account

+ interest on that

+ compensation for all your time spent @ £9.25/hr as a LiP

+ all your actual costs

 

If you had employed a solicitor and/or counsel then they would have had to repay that as well.

 

Start detailing your costs now - there's a few good post around on costs - here's one from BRW http://www.consumeractiongroup.co.uk/forum/legal-issues/247178-amex-mishcon-court.html#post2767284

 

You've got to be smiling now

[gh2008]

You do need to reply to the letter - but not urgently - as you do have to consider its content

 

We will help sort out a killer reply that will firmly tell them exactly what you think of their offer and show them in no uncertain terms that you know more about the relative merits of both yours and their client's positions than they seem to.

[Pumpkinhead]

Sorry. I didn't make myself clear and I see I also missed a word out. It should say "the original debt was NOT huge". I do know the original debt should be written off. What I meant was that they will owe me more than the size of the original debt by the time this is over.

 

I will start working on a letter and the costs, hopefully to post up sometime tomorrow.

[DonkeyB]

Can I jump back to posts 60 and 61? I may have missed this along the way, so please correct me if I'm being a bit dumb.

 

It looks to me as though they terminated the account at the same time as they issued the Default Notice (although they subsequently claim to have terminated after the 14 days were up). The letter of 9 October is a clear termination - 'your card is no longer valid and should be destroyed'.

 

I agree the consent order request is a desperate attempt to rescue their situation.

 

But my question is whether the true, earlier termination is relevant and, moreover, it if changes the issue of unlawful rescission?

[gh2008]

Not sure I get what you are saying??

 

I agree that they terminated at the same time as the default notice was issued - so to my thinking all they can possibly claim are the arrears outstanding at that point (which were paid in full)

 

I'm not sure that the OP could show any reason for damages to be claimed though.

 

What sort of line were you thinking of? I realise that this is a 'weird one'

[DonkeyB]

Well, they terminated without even giving a chance to pay the arrears, in direct contravention of what the DN said, ie. no further action. So can they even claim the arrears?

 

It's almost as if there are two cases of unlawful rescission. Four, if you count the fact that they issued two claims!

[gh2008]

I did think about that.

 

As I see it, and I know this is controversial but IMHO a creditor can unlawfully terminate an agreement at any time and then issue a claim for arrears.

 

Before you call me mad I'm not saying they can use the CCA to claim I'm saying they could claim under common law, just plain old breach of contract.

 

So, as, in this case, I think the arrears were only £80 or so (which the OP should easily be able to recoup as costs - and then some as well) I don't see that it's worth IMHO weakening the case with trying to reclaim the arrears.

 

They certainly demanded 'earlier payment of sums not yet due' by asking for the October instalment early which I think is very straightforward to put forwards the right to reclaim (i.e. they were just not entitled to demand it).

 

What do you think?

[DonkeyB]

Hi GH

 

I'm a tad confused, not by the simple case - unlawful rescission after the supposed cut-off date - but by whether the real date of termination does the claimant any favours?

 

The claimant doesn't seem to realise they terminated twice! Just looking for clarity on the legal situation, as I don't know enough to be sure. Would hate to put a 'killer' letter together only to find that it isn't watertight.

[gh2008]

I suppose you could argue that the initial termination (i.e. telling them to cut the cards up) was not a termination but an unlawful change to the T&Cs of the agreement. At that point the agreement was still live in that they hadn't demanded earlier repayment, and they were allowing the OP to repay the balance off at the agreed intervals i.e. monthly repayments - they were just not allowing any further borrowing.

 

They did not explicitly terminate before 27th October

 

However there is a statement of truth from the OC saying that they did (unlawfully) terminate on the 27th Oct (in the POC)

 

So IMHO the termination was on 27th Oct and an unlawful change of teh T&Cs was on the 9th (or 12th as it happens)

 

----

 

I think this argument is usable

 

From the T&Cs

1a We shall give you a card ......... The card will remain our property and can be recalled at any time. It will be recalled if you do not observe the terms of this agreement.

 

and

3. We may at any time, without prior notice, suspend, restrict or defer your right to draw on any credit and to make further purchases on the account

 

although I'm sure those conditions *could* be seen as unfair in different circumstances ...

Edited February 25, 2010 by gh2008
added the T&Cs

[DonkeyB]

Let's go with that then! Can't deny their own admissions!

[gh2008]

While I think of it -

 

re. the solicitors rubbishing the DPA part of the application

 

Their clause 9. of the T&Cs

 

9. Disclosure

The Company may disclose and information relating to the account holders where the Company or the recipient has, in the Company's opinion, a legitimate interest in the disclosure

 

a massively wide-ranging statement and certainly needs controlling.

[gh2008]

Let's go with that then! Can't deny their own admissions!

 

Well, except where they errrr didn't tell the truth about the default being remedied

 

They've already denied that one!!! I still can't get over the letter ........

[gh2008]

As I see it, the main points that need to be addressed are

 

1. the account was terminated on 27th Oct by their own admission and by the fact that they stopped sending monthly statement on the account in breach of clause 4

There is a clause 10 saying they can close at any time and demand full payment however that term is unlawful and unfair as it is in direct contravention of the Act. I know that's worded wrong - that's why I don't write letters

 

2.consequences of their termination - i.e. arrears only which were paid, possibility of damages due to unlawful rescission.

 

3. re-issue of DN yeah right

 

4. "Right to amend claim" (from letter) no automatic right - they have a right to ask permission to amend only

 

5. DPA issues - just because they don't at the moment register anything doesn't mean they won't in the future - their T&Cs specifically allow them to. Also they process the data themselves still and no doubt will hold on record the details of the account that they could use to assess any future application for a new card ....

 

6. thank them for their offer and submit a counter offer

 

agree complete write-off

 

agree to the data bit

 

err anything else?

 

+

repayment of Oct instalment £41 + interest

LiP time costs xhrs @ £9.25/hr 20-30 hrs?

disbursements £##.##

 

 

.

[DonkeyB]

I think the best compromise would be a 'drop hands' offer, ie. they f*** off and they don't get chased for costs.

 

The alternative is to make a part 36 offer along similar lines. More risky, but they are rather legless at the moment. Even Long John Silver has a better foundation.

[Pumpkinhead]

My! You two (GH & Donkey) have been busy tonight on my behalf. Thank you.

 

One point GH you refer to them stopping sending monthly statements.

 

This is NOT the case. They have come through each month, the most recent being for Jan and interestingly showing a sum of money as "available to spend", although how I could do this without a card I don't know. I hope this doesn't weaken my case in any way.

[gh2008]

It does change things a little - I would err more to DB's approach although I'd still be asking for a 'contribution towards costs' you want to at least get your £75 back and anything else paid out + a bit.

 

No doubt we'll get something together over the w/e. Have a go and see what you come up with.

 

gh

[Pumpkinhead]

I shall compose something tomorrow or over the weekend. Wasn't able to get my head round it today (yesterday) and I hear tell there is a lot of Rugby on the box Fri & Sat so I will have some time to concentrate while my OH watches it.

[DonkeyB]

I'll be useless tonight and tomorrow for the same reasons. Watch out Twickenham, Donkey is on his way...