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Court hearing looming...will my defence stack up???


Gemby
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Hi all

 

Im due in court soon over a credit card debt and need some help.

At the start of the court action my defence was being handled by a claims management company, who have since taken the easy option and run. So i am now continuing on my lonesome.

My original defence was based on the DCA non compliance with a s.78 request, however the DCA have now complied with the request....or so i thought. They have sent a recon agreement along with two sets of T&C's. As far as they are concerned they have met thier obligations and are continuing to proceed in court.

Since taking on the case myself i have received a SAR from the DCA, this confirmed the recon agreement and both sets of T&C's.

I then sent a CPR.18 request to both the original creditor and the DCA.

The DCA have refused to comply with this request, but the OC sent back thier reply which brought up some interesting points....

1. The OC closed and then sold the account before the date i had been given to rectify the account in the default notice.

2. The amount owing on the notice of assignment is different to that owing when the account was closed.

3. The T&C's sent by the OC are different to those supplied by the DCA.

4. As the agreement has been varied they are supposed to send a copy of the original agreement, as per Waksman ruling, but they have failed to do so.

Are these valid enough points to win in court?

 

Gemby

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From what you say, it don't believe so - but remains reasonable mitigation. If you are looking for a release from your obligations because of non-compliance, courts rarely provide this (if this is what you mean by 'a win'), but the court may seek to ensure repayment of an acknowledged debt, unless you can repudiate you ever entered into it.

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Hi buzby & rebel11

 

Thanks for your replies

 

buzby, the point i am trying to make is that the OC and the DCA have certain criteria to meet. i.e, issue default notices, provide a notice of assignment which is 100% correct, supply the correct set of terms and conditions. Surely if they do not do this to the letter they should not be able to enforce the agreement in court. Am I right?

 

rebel11, i have a hearing on 13 January. The hearing is because i have not complied with a court order to disclose documents. This is because the DCA have not complied with my CPR 18 request for information and i have been unable to compile my documents to disclose. Thanks for the info link which looks to be of help.

 

Gemby

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The issue that still remains is that you owe money to the claimant, and courts are not likely to overlook this because of a claimed technicality... the judge would have to take the view that on balance, their breach was greater than yours (in not keeping your side of the agreement). It would be too close to call, simply on the basis that a minor admin function was incomplete in some way - especially if you admit is owed.

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Hi all and Happy New Year

 

I see i am on dodgy ground on some of the defence, it could well be down to the judge lottery.

I have been reading through the OFT guidelines link from rebel11 (thanks for that rebel11) and have come across a point, which may help, and would value opinions on this.

In response to my s.78 request they have provided a recon agreement, a copy of what they think are the T&C's at the time of the agreement and a set of current T&C's. The agreement however has been varied.

Judge Waksman ruled that where an agreement has been varied the creditor/owner must provide a copy of the original agreement, as well as the varied terms. The OFT confirms this, the duty is to provide a copy of the agreement as originaly executed as well as documents showing the variations.

Their response to my s.78 request is incomplete and they are not permitted to enforce the agreement whilst the failure to comply continues.

I do not believe they have a copy of the original agreement because it has not appeared in my SAR or CPR requests. So if they cannot provide the original they cannot enforce....right???

 

re

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The issue that still remains is that you owe money to the claimant, and courts are not likely to overlook this because of a claimed technicality... the judge would have to take the view that on balance, their breach was greater than yours (in not keeping your side of the agreement). It would be too close to call, simply on the basis that a minor admin function was incomplete in some way - especially if you admit is owed.

 

 

The consequence of a ruling such as this is to provide(MY CLIENT) with a windfall and I am conscious of the unfairness in one sense that that may lead to. I was taken in the course of argument to the speech of Lord Nicholls in the case of Wilson and Others v The Secretary of State for Trade and Industry [2003] UKHL, 40. At paragraphs 71 and 72 he recognises that the consequences of the provisions of section 127(3) can indeed lead to drastic, even harsh, consequences for a lender who loses all his rights under the agreement. It is an unattractive feature sometimes, for it involves punishing the blameless pour encourager les autres. But Lord Nicholls’ view was that Parliament had singled out some obligations as having such importance that non-compliance would lead automatically and inflexibly to a ban on the making of an enforcement order whatever the circumstances, and that those obligations were specified in sections 127(3) and (4). Parliament, he said, had chosen deliberately to exclude consideration of what is just and equitable in the particular case. Lord Scott echoed what he said at paragraph 164 of his speech.

 

 

im sorry but i whole heartedly disagree with buzby

 

the quote above was from a judge of the High Court of Justice, in a case which i have the judgment on and which shows that the courts are quite prepared to find for the debtor, and i have many judgments in the same vein, just look up beachcomber60 , Klg80, etc, their cases were won on the basis of statutory non compliance and minor statutory breaches,

 

the fact is, it is how you prepare your case and present it thats key, having a good barrister in your corner is key to winning in my opinion

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I can assure you of the 100+ cases if have witnessed in court, the Judge will always look at the case 'in the round' - not blind/blind himself to a possible paperwork error and somehow disallow recovery or enforcement of a contract. Some judges may disagree - resulting in the cases you highlight, however it still remains a lottery, but very much weighted against the debtor, so lets not dismiss this as an outcome that cannot be achieved.

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Believe what you like - however, there is little point only painting one side of the probability - this misleads and when a poster is gobsmacked at the outcome (because nobody suggested that a lose is eminently possible) I'd suggest my posting provides the most realistic outcome, but holds the potential for a win - which would be welcomed. However, giving assurances that a win is a formality, the disappointment of a lose is a much greater catastrophe.

 

For being dismissive - you misread the situation. Accuse me of being a realist by all means, but don't attempt to fools people who can only see or cling on to a win as the only option. It isn't, and they need to be aware of this.

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oh my

 

im saying that it depends on the case and who presents it

 

if its a complete balls up from the outset then you wont win, but if the case has merit, (key word) and you have the case authorities, to support you, which we do, and you have a good barrister, then you can win.

 

i am not gauranteeing nothing, but my reading of your post was very much "accept defeat cos you arent going to win" that is how it comes accross, and i cannot say that is a fair statement to make. it really depends on how the case is put together,

 

Let me say, the case i took to trial, which i provided an excerpt from, the OP got told on here that he would not win, i obtained counsels opinion and took the case to trial and won, i even did it on no win no fee, the point is that its all down to the preparation, there was a case with the same material facts went to trial, but the LIP represented himself and lost, we have since won 4 more cases on the back of this judgment, so its not a one off, and btw its a binding precedent, and handed down after the Carey case too

 

so, there we go

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Hi pt2537 and buzby

 

OK now im confused!

 

pt2537, i am inclined to agree with you that the creditors have a duty to be 100% accurate and that they only have themselves to blame if they are not. Do you have any links to he cases you refer to? I have scanned the beachcomber60 thread but it does not seem to give the reasons for the win. I cannot find the klg80 thread. I am currently defending this as a LIP, do you know of any CFA solicitors to take on the case? I was using a CMC but they bottled out at the first fence.

 

buzby, whilst i totaly understand you point of view, it makes sense that a judge will rule for the creditor, after all they are out of pocket, but surely the judge still has to abide by the laws laid down to protect the consumer?

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buzby, whilst i totaly understand you point of view, it makes sense that a judge will rule for the creditor, after all they are out of pocket, but surely the judge still has to abide by the laws laid down to protect the consumer?

 

Unfortunately not. It is up to those in court to provide the judge with the relevant extracts to prove their argument. The judge is an arbiter - if a law exists that supports your PoV, you have to provide a copy of it. It is not the case where you believe there is such a law, and hope the judge (being a professional) will be aware and act on it. Some may be up to speed, but there is no requirement for them to be.

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Unfortunately not. It is up to those in court to provide the judge with the relevant extracts to prove their argument. The judge is an arbiter - if a law exists that supports your PoV, you have to provide a copy of it. It is not the case where you believe there is such a law, and hope the judge (being a professional) will be aware and act on it. Some may be up to speed, but there is no requirement for them to be.

 

So then on this basis all i need to do is back up my argument with examples, convince the judge that i know what i am talking about, and i will walk it!

Easier said than done eh!

However if i quote CCA and relevant regulations with my limited understanding of the law, am i just going to get bowled over by the claimants solicitor and the judge? As a LIP do i get any special treatment or am i expected to be up to speed?

You mentioned 100+ cases that have not succeded are any relevant to my circumstances?

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You may be treated sympathetically, but he judge cannot be anything other than impartial - which means (for example) if your rejection of the claim made against you was uninspiring, (unconvincing) to a judge but that he saw a flaw in the other sides argument, he might hint in a manner that - if you were up to speed - recognise, and be able to kick out the other party's fundamental argument. But in the absence of this outcome means you lose.

 

For most, the court is intimidating enough - but you need to see past this and be able to concentrate on what is being said and know how to challenge it. This is very difficult if you don't do this regularly.

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Looks like some posts have gone. Do MCS use Watsons as well?

They all seem as bad as each other.

Cherry pickers - and leave everyone else in the dark!!

 

They promise the world, with no risk of having to pay any costs, then a few months down the line they start demanding money!!

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  • 1 month later...

thread tidied at OP's request

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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