Link/Kearns claimform - MBNA/Virgin Credit card 'debt' *** Claim Dismissed with Costs***

[dx100uk]

already answered in post 62

[RedPillGuy]

already answered in post 62

 

as I said, trying to understand.

 

Post 62 Andyoch said "An agreement cant be executed by relying on the Electronic Communication Act 2000..that legislation simply verifies the authenticity of a signatureicon...you made the application using the act...thats all that covers..not its execution."

 

On the link I posted to the other thread Andyoch also said:

"If it was an online agreement, all they would need from December 2004 is a tick box confirming you agreed to the t's and c's..., as The consumer crediticon Act 1974 (Electronic Communications) Order 2004 came into force in December 2004 any online agreements entered into prior to this date still need a signed executed credit agreement.

 

Electronic signatures weren't considered valid until this date."

 

My agreement is AFTER the effects of the 2004 order came into force, so "I agree" is legal.

 

Just trying to deconflict two things Andy himself has said.

[RedPillGuy]

Donated

[AndyOrch]

Andy, the caselaw at Bassano v Toft & Ors [2014] suggest otherwise - see https://www.scl.org/news/3037-consumer-credit-and-online-signatures

 

Any opinion on that?

 

In that case it was done on the premises I believe and therefore did not fall into Distance Selling Regulations.....which then requires a hard copy to enable the cooling off prescribed term...onscreen agreements cant get around that...a PC will not sit and wait for 14 days before execution to allow you to cancel.

[RedPillGuy]

Oh, very clever. Bravo.

 

So a whole new rabbit hole to go down in my research - DSR.

[RedPillGuy]

@dx100uk,

 

Just wondering about the multiple late charge fees - any pointers on how I would include these in my witness statement?

 

No PPI unfortunately

[RedPillGuy]

Draft WS attached - comments and feedback appreciated.

 

We are meant to exchange simultaneously on the 9th. I am cautious they will wait for mine before supplying theirs - should I be worried? Also they have to pay the court fee by 4pm on the 8th or it will be struck out. Should I phone the court at that time and if not paid request the striking out?

redacted WS.pdf

[AndyOrch]

Then you wait for theirs before serving yours...you can still file with the court on time.Yes you should ring the court on the 8th to check if the fee has been paid.

 

You will have to copy and attach all the relevant case laws you have referred to in your witness statement as exhibits.

 

Andy

[RedPillGuy]

You will have to copy and attach all the relevant case laws you have referred to in your witness statement as exhibits.

 

Andy

 

How much of the case do I need to submit - just the relevant sections or whole transcripts / judgements

[AndyOrch]

Relevant sections are already included within your statement...I would have the full copy of the case to hand in case the Judge is unaware..if you can pick them up on BAILLI they should be no more than 2/3/ sheets per case.

 

I personally think your statement is a tad to extensive and not drafted in your own words...and may come across as teaching the DJ to suck eggs.....just my opinion.

 

Andy

[RedPillGuy]

Witness statement and supporting documents submitted. Kearns have paid the fee, so looks like we are heading to court.

 

Next step is submit Pretiral Checklists by 23rd August - just form N170?

[AndyOrch]

[RedPillGuy]

With the N170 I need top attach an estimate of costs.

any threads where this is outlined - I have spent hundreds of hours on this over the months.

 

Also Kearns have written with me to agree the contents of the "bundle". this includes a "Timeline of events" that they have written - should I be challenging this?

[AndyOrch]

https://www.moneyclaimsuk.co.uk/litigant-in-person-costs-and-expenses.aspx

 

Both parties are expected to agree the bundle contents..if there is something questionable or not disclosed on the n265 inform them.

[RedPillGuy]

In the case summary, Kearns state:

 

it is the claimants position that:

• The Credit Agreement is properly executed and contains each of the prescribed terms

• That the Terms and Conditions are properly embodied within the Credit Agreement

• S87 CCA 1974 presents no bar to enforcement, as there was no accelerated recovery

• Alternatively, any error within the Default notice is de minimus, as no action was taken within the prescribed period for remedy, nor any effort made at compliance

• Termination was contractually permitted and entirely regular

• The assignments are proven by reference to the documents

• Statutory interest is a matter for the court’s discretion as to rate and period

There is no application filed requesting further issues be raised or evidence adducted, accordingly the outstanding issues that currently stand before the Court and require determination are:

• Whether the Credit Agreement is properly executed

• Whether the Default Notice is defective

• If the Default Notice is defective the effectof s87 CCA upon the Claimants Claim

• Whether the Termination was lawful and if not, any effect this has upon the claim

• Whether assignment is proven to the satisfaction of the Court

• The level of any statutory interest to be awarded

 

 

I'm concerned by their line that s87 presents no bar to enforcement, and in any case is de minimus given that did not take termination action straight away.

 

Any thoughts?

[AndyOrch]

Section 87 is with regards to the requirement of a Default Notice.

 

http://www.legislation.gov.uk/ukpga/1974/39/section/87

[RedPillGuy]

sorry that was a typo on my part - their case summary says s87. How can they claim s87 "presents no bar to enforcement, as there was no accelerated recovery"

[AndyOrch]

Additionally, under s87, a creditor or owner must give the debtor or hirer a default notice in the prescribed form if he wishes to do any of the following:

 

terminate the agreement

demand earlier payment of a sum

 

Section 88 is also amended to allow the Secretary of State to prescribe information in the default notice to include any matters relating to the agreement (e.g. information about whether the agreement includes a term providing for the charging of post-judgment interest).

 

You will have to tell me the detail of the default notice as issued by MBNA/Virgin...assuming one was issued ?

[mpmmpmpmp]

What was your credit limit on the card?

The Default Notice does not give 14days from the date of service as it must, this is fatal to their claim.

 

 

There is Court of Appeal precedence in Brandon vs American Express Services Europe Ltd which says less than 14days being given for compliance would not be overlooked as de minimis both to the failure to allow a minimum 14 day period and to the absence of prejudice flowing from the defect in the Default Notice.

 

 

Read that judgement and provide a copy to all parties if it isnt already too late.

[Bazooka Boo]

Faulty DN's can be rectified, AFAIK, even if it doesn't give you the 14 days to rectify, all they need do is submit one that does.

[mpmmpmpmp]

The original creditor must be the one to resubmit afaik. As soon as your debt is factored this is never going to happen imo.

[Bazooka Boo]

Good point, yep, if it's been sold then the DN can't be rectified.

[RedPillGuy]

What was your credit limit on the card?

The Default Notice does not give 14days from the date of service as it must, this is fatal to their claim.

 

 

There is Court of Appeal precedence in Brandon vs American Express Services Europe Ltd which says less than 14days being given for compliance would not be overlooked as de minimis both to the failure to allow a minimum 14 day period and to the absence of prejudice flowing from the defect in the Default Notice.

 

 

Read that judgement and provide a copy to all parties if it isnt already too late.

 

Yes, i cited that case specifically in my defence. Kearns seem to think they can argue this out in court.

 

Court date 12 Sept, so guess I get ready to argue my case. i too would have though the 1 day fault DN would have scared them off from going to court.

[RedPillGuy]

Additionally, under s87, a creditor or owner must give the debtor or hirer a default notice in the prescribed form if he wishes to do any of the following:

 

terminate the agreement

demand earlier payment of a sum

 

Section 88 is also amended to allow the Secretary of State to prescribe information in the default notice to include any matters relating to the agreement (e.g. information about whether the agreement includes a term providing for the charging of post-judgment interest).

 

You will have to tell me the detail of the default notice as issued by MBNA/Virgin...assuming one was issued ?

 

DN issued by MBNA dated 10 Apr 12 with remedy date 24 Apr, so no time for postage. (see attached)

DN1.PDF

[AndyOrch]

Then the prescribed 14 days is not available to rectify.

 

http://www.legislation.gov.uk/ukpga/1974/39/section/88

 

Sec88 (2)

 

(2)A date specified under subsection (1) must not be less than [F114] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F114] days have elapsed.