Debenhams Store Card-defence - **SUCCESS - CLAIM STRUCK OUT**

[MONTY]

Duplicate post

Edited October 28, 2010 by MONTY
Duplicate post

[foolishgirl]

Well this sounds a bit of a fiasco doesn't it Monty?

 

Sounds as though the DJ's main thrust was & will be, to try & catch the sols out on the assignment procedures. Maybe he has knowledge of those but not particularly of the CCA & feels on safe ground with the former? That said, I'm not sure how he cna be so insistent on the NOA issue but not on seeing the DOA. If they don't concur in their content, the Claimant has no case anyway.

 

IMO you are going to have to revisit your defence thoroughly & bring back into the argument the agreement, asking him to define his reasons for ignoring the provisions of specific clauses in the CCA relating to the 1983Regs in respect of the 'agreement'.

 

You may also like to PM gh, he's good on assignments

[debbbbsy]

Well done though for keeping your cool. Atleast you have the opportunity to look back at your case. And force your point across.

Foolish girl is right, Judges are too quick to disregard points of legislation that they quite simply don't understand. I doubt that he would have disregarded your points if they were made by a Solicitor/barrister.

 

Good Luck

Debs

[emandcole]

Firstly, the Judge asked me to present to him what was wrong with the agreement. ‘It’s not an agreement it’s an application form..’ I said, confidently. ‘It says so on the top of the form…it does not even specify whether it’s a credit card agreement or a store card agreement’. ‘Not so…’ says the Judge, ‘…it clearly states it is a Credit agreement. Whether it is a store card or a credit card is not relevant.

The important bit is to differentiate between a 'credit agreement' and a 'credit card' agreement but essentially he is right when stating there is little difference between a store card and a credit card. Did your application state it is a 'credit agreement regulated by' or a 'credit card regulated by'? The provisions for each are important as they have differing prescribed terms.

 

How is it defective?’ I said it was not compliant with the regs. He naturally asked how. I struggled to wade through my now out of presentation order bundle, but eventually found and quoted the 1983 regulations. The Judge stopped me in my tracks and informed me very firmly, but nicely, the Agreement was valid.

Sounds as if he'd decided it was regardless of what he was given...check those regs. I also presume we're looking at the originals in court here?

 

I apologised that perhaps I had taken a few moments to find the relevant documents in the bundle, but had expected to present that the claimant had no right to bring a claim in the first instants. I had not even seen a Deed of Assignment at this point. ‘Not required..’ say the judge.

Not required unless you ask to see it - eg you give a damn that the claimant actually has the right to bring the claim in their own name! Use (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

The Judge asked me to move onto the Default Notice. Easy I thought –‘There is no specific date…it just says remedy within 14 days’ I confidently declared. Once again the Judge came back, ‘Actually, it is 21 days and it does not have to be date specific any more…’

Where does he get that from - doesn't have to be date specific anymore? The regulations clearly state a data must be given. If he insists on ignoring this and you know the case is going pear shaped politely ask him to detail for the benefit of future reference on what grounds he has decided that 'no date for remedy needs to be given' when the regulations clearly state a data must, not may, be given.

Have they given you 21 days? Where is this from? What are the dates on your DN?

 

The Judge asked, ‘How could the NoA be valid if it was issued prior to submission of the claim…?’ The solicitor, obviously flustered, just about got out that she did not have the relevant authority with her.

Don't understand - the notice of assignment would/should have been provided to you before proceedings were issued so what does he mean? I'd get it if the NOA was issued after proceedings as you could argue pre-action protocol hadn't been met.

 

At this point the Judge orders a stay of 14 days and orders the solicitor to produce the relevant authority that allows a NoA before submission of a claim. If they cannot produce the case may well be struck out.

 

Turning to me, the Judge advised that he was aware that I may have issues with what I believe to be illegal charges but these had been ‘done away with..’ and that I needed to be aware of this.

Complete tosh. The charges issue focused solely on banking charges and did not have any bearing whatsoever on credit cards, store cards or anything else. First of all any charges must have been clearly detailed in a schedule in the inception terms and conditions. If he runs with this ask him to detail how a high court case specifically relating to bank account charges allows any creditor to apply charges on any other form of account and under any other form of credit. The OFT were quite clear on the matter.

 

If the charges aren't on the inception T&C's then they simply had no contractual right to apply them to your accout any more than any other supposed 'right' such as being able to come round to yours once a month for breakfast at 08:00 or to borrow your car to go on holiday after giving 2 days notice.

 

A creditor cannot just stick costs on an account under the presumption 'you'd just know' they would do that. If that's the case what's to stop them charging you a million pounds for a late payment? Is the court gonna uphold that too?

 

If the charges are on the original T&C's fair enough, if they are not very different. Also, if they are not and you have paid them (as if they've been applied who knows what part of any payment went towards the default charges and what part was used to pay the debt) then how can the default notice amount be correct? If you've paid say £80 extra for charegs they had no right to apply and they've subsequently sent a default notice asking you to pay say £60 technically you've already paid them and secondly, the amount they want is way more than you actually owe.

 

This is classic Woodchester territory and the default there was declared invalid by the court as it overstated the amount actually owed. If the DN is invalid there are clear repurcussions all over the place, you should not be in court, they've unlawfully pulled your agreement and deprived you of your account, all sorts.

 

He went on to say he was also aware I had issue with the PoC and interest rates. Furthermore, although he had ordered a stay to allow the Claimant an opportunity to prove why the NoA was, in the Claimants opinion valid, this did not stop the Claimant for reissuing the claim and I needed to be prepared for this. The Judge then said, ‘You may want to keep your ‘powder dry at this point…’

If you've issued a defence and the claimant has got this far and messed it all up that's not your fault. Not sure of the precise technicalities here but if the claim has already been heard and is lost then the claim cannot be restarted again unless the court gives permission. Don't know if this applies if the case is somehow dismissed or struck out instead of just a conventional loss.

 

And that is where we are. I feel a bit shell shocked and a bit railroaded and need time to assess what has gone on – and my next move.

You need to use this as a learning experience and you now know what sort of attitude this particular judge has - eg ignorant. Go over the bits he was keen to ignore and ensure for each point that you have the authority to support it. Also, get the deed of assignment!

[MONTY]

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=201010-SRARESPONSETOCOMPLAINTREDACTED.jpg

 

Please folllow the link to SRA's response to my complaint about Cohens. Should I bring this to the attention of the Judge?

 

Monty

[debbbbsy]

The important bit is to differentiate between a 'credit agreement' and a 'credit card' agreement but essentially he is right when stating there is little difference between a store card and a credit card.

I disagree.

Attention needs to be drawn to GE Money when confronted by the OFT in 2004, in relation to issuing these credit cards when they had not been requested by customers. The customer agreed to a Storecard (By signing the application/ credit agreement) accepted the T&C's, and the interest rate applicable to this type of account. However, when GE replaced the Storecard with a Credit card, they also altered the T&C's, and the interest rate. They breached the Consumer Credit Act 1974, and failed to follow lawful procedures.

 

Clearer store card conversion for consumers

 

GE Capital Bank agrees to clarify conversion of store cards to credit cards

 

09/04 15 January 2004

GE Capital Bank Ltd (GE) has changed the way it will offer to replace its store cards with a Mastercard credit card after discussion with the OFT.

GE has sent out letters to many Harrods and Debenhams cardholders saying that their store card would automatically be replaced by the Mastercard unless cardholders objected. The company later sent out letters with the new card explaining that the cardholder could continue to use the store card until the Mastercard was activated. However, this information was not prominently displayed and could easily be overlooked by the consumer. Although GE require all cards to be activated by the consumer before use, the OFT considered that the way in which the offer was presented did not alert consumers to their options with sufficient clarity.

The Consumer Credit Act 1974 prohibits the sending of a credit token to a consumer unless it has been requested in writing. GE considers that it was not contravening the law because it was not supplying a new credit token but sending a replacement card as a result of a variation to the existing store card agreement. The OFT recognises that the GE store card was similar to the credit card in some respects, including providing for cash advances. The legal position was therefore unclear.

GE has agreed to make changes to its approach. In its new mailing to Debenhams store cardholders it has made it clear that cardholders do not have to replace their store card with the credit card in which case they need take no further action, other than destroy the credit card. GE will also ensure that all the literature used in future conversions will make cardholders clearly aware of the options they have.

In addition, the OFT has challenged a standard term in the GE store card agreement that purports to give GE an unrestricted unilateral right to change the terms of the agreement. The OFT considers that this term was legally unfair (see note 1). GE has, without accepting the OFT's view, agreed to amend the challenged term to limit its applicability.

The OFT recognises that there may be advantages in replacing a store card with a credit card if the consumer chooses, especially where lower APRs are on offer. The OFT also notes that GE, in line with principles of responsible lending, has taken care to make a proper credit assessment of individual cardholders being invited to change to the credit card and that initially credit limits have remained the same. GE has also responded positively in discussion with OFT about ways of making the choices available to cardholders clearer. In the circumstances the OFT is taking no further enforcement action at this time.

John Vickers, OFT Chairman, said:

This was the defence I used.

 

May I bring to your attention the facts that a Store ChargeCard and Mastercard are so different. In particular the terms and conditions of the Store Chargecard and Mastercard differ.

As an example, but not limited to:-

1. The agreement for the Mastercard is for a ‘Credit Card’ while the Storecard agreement is for a store card.

2. Credit limits and interest rates for the 2 cards differ, as do other terms and conditions.

3. The Mastercard could be used in shops and businesses anywhere that display the Mastercard sign, while the Chargecard is restricted for use in Debenhams shops.

The Storecard application form, which you have provided (illegible, undated copy that is not in the prescribed form) is not the agreement you refer to in your Particulars of Claim (Claim Number xxxxxxx dated xx xxxx 2009) which you rely upon to enforce judgment.

 

Debs

[MONTY]

As I am sure you can imaging, I have been working through all aspects of my defence and what the Judge saidoin the day. I have turned up something which is quite possibly very serious indeed.

 

With reference to the DN, when the Judge asked what was wrong with the DN I cited 1983act and the the letter had prescribed only 14 days for resolution but in fact this was only 13 days and was not date specific. The Judge dismissed this saying actually the DN gave 21 days and did not have to be date specific, at which point the Claimant's solicitor waived a copy of the DN under my nose - I could see it said '21-days'. I felt embarrassed as I was sure the DN i had received had clearly stated '14 days'. At this point the Judge moved us swiftly on to the NoA.

 

I have checked and the original DN does state 14-days. The original letter was included as an exhibit with my WS and clearly shows this. Therefore, the evidence the Claimant relied upon at hearing had been clearly falsified to read 21-days.

 

Now, I may not have a legal background but believe the falsification of evidence and the presentation of the same at hearing must surely be an offence. Whilst this case is stayed I urgently need to bring this to the attention of the Court. How should I proceed?

 

Monty

Edited November 2, 2010 by MONTY
missing info

[emandcole]

One thing I have learned is that yes, if this is the case it is serious to us...but when you get into court and announce what has happened expecting the judge to be angered by it, all you actually get is polite disinterest. It seems the court are so used to the trickery of the creditors that they have become indifferent to it all - arguably a contributory factor in the Brandon 'the default period is not important' case.

 

As an example of court apathy in my case the creditor had attempted to perrverse the course of justice and Trading Standards upheld the complaint - when I got into court however expecting fireworks the judge couldn't have been less interested. I honestly believe the creditor could walk into the court room, climb up and take a dump on the desk and the judge wouldn't be bothered.

 

With that dismal scenario in my mind what is important is that the notice you have is the original, it must therefore take preference over anything they turn up with. If you submitted a copy of it (which I presume you would have done) then make sure you direct the court to it next time round, you can then ask the claimants representative what theirs is supposed to be because it certainly isn't a copy of what they issued as clearly, you have that.

 

With that in mind how accurate is anything else they also claim is 'original'? Good to introduce doubt where you can.

[debbbbsy]

when I got into court however expecting fireworks the judge couldn't have been less interested. I honestly believe the creditor could walk into the court room, climb up and take a dump on the desk and the judge wouldn't be bothered.

 

I completely agree, infact I had the most horrendous confrontation with a judge at a charging order, she was completely bonkers, totally misinterpreted the court file. When I had calmed down, about a week later, I phoned the court to ask for a copy of my file, when I explained to the clerk why, I was informed that she had been removed from her post......I don't think she was a judge for long. The whole system is unfair, & weighted against the litigant.

 

Debs

[MONTY]

This issue over the DN having been apparently altered to reflect 21 v 14 days has insenced me. So much so that i have complained to the Solicitors Regulation Authority and provided them with copies of the relevenat letters. I copied all this to the District Judge who heard the case on the 28th October.

 

The court have written to confirm the Claim is stayed until 11th November '...to allow the Claimant to consider their position.' I am presuming I should make myself available to appear again?

 

Monty

[emandcole]

Good for you. Yes, always be available if possible. The constructed DN was clearly submitted to attempt to mislead the court into adopting a position against you that was never the case. The fact they have done this only reinforces the fact that their original DN was invalid.

[MONTY]

I phoned the Court today. I am not required to attend on Thursday. This just the end of the stay.

 

Monty

[foolishgirl]

Just my personal opinion Monty - go to court on Thursday.

 

CAGers have been told this before only to find that the Claimant takes advantage of their absence to wheedle things their way. At least if you're there, they would find it hard to pull any tricks.

[MONTY]

Just my personal opinion Monty - go to court on Thursday.

 

CAGers have been told this before only to find that the Claimant takes advantage of their absence to wheedle things their way. At least if you're there, they would find it hard to pull any tricks.

 

The Case is not on the list

 

Monty

[MONTY]

If the Judge rules against me I will be appealing. Ther are too many errors to ignore

 

Monty

[MONTY]

I have received a notice from the Court saying that as the Judge has received letters from both parties the stay is extended until 31.12.2010

 

Monty

[foolishgirl]

Oh, well, enjoy Christmas, monty!

[MONTY]

By way of an update, nothing further received to date. Should I apply to strike out and would this cost me?

 

Monty

[debbbbsy]

Hi, Monty

 

When they extended it again to the 31/12/2010. Are they waiting on a response from the solicitor ?

 

debs

[foolishgirl]

Give the court a ring monty & ask if the stay has been lifted & if not, why not?

[MONTY]

Give the court a ring monty & ask if the stay has been lifted & if not, why not?

 

I phoned the Court who informed me that the Judge was waiting for a response. When I asked who from they could not clarrify. I aked if there was anything outstanding from the Defendant which the confirmed there was not. They went on to say that there was a backlog and I might like to write to the Judge confirming that a settlement had not been reached 'in order to help the Judge make an order'.

 

I want to write the the Court and say, that given the default notice is defective and the NoA is incorrect that he considers striking out the claim as he alluded to at hearing - what do you think - or should I formally apply for a strile out using N224?

 

Monty

[debbbbsy]

When I asked who from they could not clarrify. I aked if there was anything outstanding from the Defendant which the confirmed there was not.

 

So, if the judge isn't waiting on you, then it must be the claimant. This is confusing......tread carefully and keep on at the courts. I think you should put something in writing to the judge asking for clarification on what is going on. Send it recorded. Court cock ups seemed to always go in favour of the claimant.

[MONTY]

So, if the judge isn't waiting on you, then it must be the claimant. This is confusing......tread carefully and keep on at the courts. I think you should put something in writing to the judge asking for clarification on what is going on. Send it recorded. Court cock ups seemed to always go in favour of the claimant.

 

OK. I have put the following together. I know it probably does not suscribe to Court protocol but in my ignorance as a LiP the odd mistake might be forgiven (?):

 

Dear Sir,

 

Claim Number XXXXXXXXXXXXX CL Finance Limited – v – XXXXXXXXXXXXXXX.

 

I am writing as requested following my telephone conversation with the Court of XXXXXXXXXXXX January 2011.

 

I can confirm that a settlement has not been reached in the above matter.

 

I respectfully request the District Judge XXXXXXXX considers his instructions to the Claimant at hearing. The Claimant was to provide to the Court substantiation that the Notice of Assignment had been sufficiently served before proceedings were commenced and thereby giving the Claimant a right of action. District Judge xxxxx did advise that if the Claimant could not comply with this instruction the claim might be struck out.

 

I respectfully request that District Judge also considers my letter of the XXX November 2010.

 

Yours faithfully,

 

The letter of XXX November 2010 referred to can be found in this string. It copies the Court into a complaint to the SRA where the Claimant produced an altered DN at hearing

 

Monty

[foolishgirl]

I would suggest amending this para to something stronger eg:

 

 

Following the hearing of xxx, the above case was stayed until 11 November 2010, with a further extension granted until 31 December 2010 in order that the Claimant 'might be allowed to consider their position'.

 

I have not been contacted by the Claimant in respect of this matter & confirm that a settlement has not been reached.

 

District Judge XXXXXXXX instructed the Claimant to provide to the Court substantiation that the Notice of Assignment had been sufficiently served before proceedings were commenced, thereby giving the Claimant a right of action. As far as I am aware, this evidence has not been offered to the court to date.

 

Furthermore it is also noted that the default notice produced by the Claimant to the court is not a true & accurate copy of the original notice that was issued to the Defendant , a true copy of which was submitted to the court with the Defendant's witness statement.

 

As the Claimant has not complied with court orders & has presented false evidence to the court, I therefore respectfully request that this case is reviewed as a a matter of urgency & that the court use its powers under the CPR 3.4© to strike out the case or formally lift the stay & allow it to proceed at the earliest opportunity.

 

[MONTY]

I would suggest amending this para to something stronger eg:

 

Again I am in your debt foolishgirl! This letter will be hand delivered Monday Morning

 

THANK YOU

 

Monty