Amex/Mischcon V Me

[Guest Mrs Hobbit]

Now there is a thought. I wonder how many other Judges have stated this. it will be in the transcript of the hearing also. It was clear it he did not want to hear this case.

 

We had better not hijack this thread any further. Amazing how things go off on a tangent.

[Ruprecht]

 

So to add:

 

DNs are effective in making DCAs discontinue and I never said they weren't effective, just that FOR Court, a stronger argument needs to be in place in case it gets there. That is why set off is VERY important as a defence. The reason why DCAs discontinue on the back of a faulty DN is because the arrears are only a couple hundred pounds, whilst the whole debt is several thousands, and when faced with a cag defence with a faulty DN, the couple hundred pounds are not worth recovering so is in fact written off. If a DCA really wanted to be petty, they would go just for the arrears but they are in it for business, not for revenge which is why the discontinuance occurs. The point of litigation is to be prepared... so there is no harm in being prepared!

 

I am intersted in the whole "abuse of process" thing.

 

I have some legal education but I am not a solicitor and I don't know how things really go down.

 

If a DCA started proceedings for say £9k then it turned out the DN was defective and they were only entitled to say £200 then surely the claim is an abuse of process?

 

Wouldn't that cause one or more of the following?

 

(1) No costs to claimant awarded.

(2) Costs to defendant awarded.

(3) Claim struck out completely as an abuse of process.

 

If the overiding objective of the legal system is out of court settlement surely if they commence proceedings for say £9k and they only have a legal right for £200 they are denying you the opportunity to settle early?

 

I am sure nearly everyone would settle for £200 on a £9k claim LOL!

Edited July 8, 2010 by Ruprecht
spelling

[Blondie40]

 

If a DCA started proceedings for say £9k then it turned out the DN was defective and they were only entitled to say £200 then surely the claim is an abuse of process?

 

 

Don't you think they issue proceedings in the hope that debtor will panic and agree to making payments. Thereby admitting the debt and the claim not proceeding to trial.?

 

They probably have a good idea that the DN's are defective and just hope the debtor hasn't worked it out.

 

It would be interesting to know what percentage of claims issued by creditors are subsequently discontinued before they get to trial following defendant submitting a defence based on faulty documentation.

[Rhia]

Blondie40. I'm with you on this. Suspect much, if not most court action by DCAs is an abuse of process aimed completely at getting the debtor to panic and make payments (even if the DCA is not entitled to those payments).

 

They know they don't have the correct paperwork yet push on regardless and this is because they have been getting away with this for years but also because for every one person who fights back, there must be many who don't!

[freethemice]

They can't loose really. They take you to court regardless of the evidence. If you put up a good case they discontinue at the last minute to avoid setting a prescident and if you don't they win and have more ammunition to show the next judge.

Its the law that needs tightening.

Surely it is not too much to insist on an executable agreement and default notice before a credit card claim is made. Just think of the time this would save the courts.

[Rhia]

That's exactly what should happen FTM.

 

At least the Scottish system is now insisting on seeing the original agreement or they can't bring a case. It really is so simple and would free up a hell of a lot of court time.

 

Can't work out why they don't do this in England and Wales.

[nodefaults2010]

Rhia - I was not aware this was happening in the Scottish system. When and how did that come in to effect? As you say, why on earth don't they just do that in England and Wales and save everyone a lot of time and confusion??

[cymruambyth]

Hi Martel, can't add anything to your threads but following with interest and support.

Keep fighting!

[car2403]

Off topic conversations about FOI here;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/267172-using-freedom-information-act.html

[freethemice]

That's exactly what should happen FTM.

 

At least the Scottish system is now insisting on seeing the original agreement or they can't bring a case. It really is so simple and would free up a hell of a lot of court time.

 

Can't work out why they don't do this in England and Wales.

 

Well for one we can all write to our mp's

 

With the austerity measures in mind I do have a brilliant idea how we can free up court time and vastly reduce the burden placed on legal aid.

When a creditor takes a debtor to court over an agreement covered by the consumer credit act they must with the application include a verified copy of the agreement in question and the default notice needed to take the next step enforcement action.

The we could move on to our own experiences and how this has impacted on us.

 

Enough letters and the prospect of saving money - who knows!

[meursault22]

Yes, I can't make up my mind whether the judge I've come across is just incredibly prejudiced against the general public or is bent. He certainly has no concept of justice. It seems that if you end up in court accused of owing money, some judges think you deserve all they can throw at you. Even when their actions fly in the face of the law, it all comes down to judge's discretion. I hope this makes you feel a little better to not be alone.

 

Anyway, I've read somewhere in the CPR that allowances are supposed to be made towards a litigant in person to allow a level playing field. Can anyone remind me exactly where to find this ?

[meursault22]

Now there is a thought. I wonder how many other Judges have stated this. it will be in the transcript of the hearing also. It was clear it he did not want to hear this case.

 

We had better not hijack this thread any further. Amazing how things go off on a tangent.

 

I have tried to get transcripts of hearings only to be told that for County Court, they don't exist. Maybe that's because all my hearings have been held in chambers, but I would feel alot better if everything was being recorded.

[Martel]

It's my experience that all hearings are recorded - though you should always ask/insist that they are at the beginning of the hearing (speak tot he usher). You can apply for a transcript (probably betw £50 and £150, depending on the length of the hearing). I'm not entirely sure, but I think you can apply to the court for a transcript of the DJ's final reasoning/order.

 

Martel

[Martel]

Does anyone think that this recent OFT ruling might be helpful to my case?????Amex-requirements.pdf

 

 

 

 

Thanks in advance,

MX

[the_shadow]

Does anyone think that this recent OFT ruling might be helpful to my case?????[ATTACH]23502[/ATTACH]

 

Thanks in advance,

MX

 

Apologies Martel but can you summarise where we are with this and which part of the OFT restriction on Amex you think would apply.

 

I note from post 1 that your default notice was defective, you should be aware that Brandon vs Amex quashes most problems with faulty default notices at present but thats due for an oral appeal application on 6th Dec I believe.

 

S.

[Martel]

Apologies Martel but can you summarise where we are with this and which part of the OFT restriction on Amex you think would apply.

 

I note from post 1 that your default notice was defective, you should be aware that Brandon vs Amex quashes most problems with faulty default notices at present but thats due for an oral appeal application on 6th Dec I believe.

 

S.

 

Hi Shadow,

 

Thanks for your post.

 

I don't know what in the new OFT requirements might apply to my case. I think the other three OFT requirements (Welcome, Alliance and Leicester and HFC) also concentrate on charging orders but also, to my untrained eye, involve 'unfair relationships'.

 

Interesting about the Brandon case.....looking forward to hearing the verdict on Monday!!!

 

Just seems the courts are siding with the creditors.

 

 

MXXX