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

[RedPillGuy]

They will probably argue that they did not terminate on that date, instead it was several months later that they terminated. Any pointers to refute that?

[dx100uk]

and ofcourse re Harrison v link/mbna we know they use ukmail ltd that takes atleast 5days to get into the royal mail system too.

[RedPillGuy]

when the DJ says "I can see you have used the card so accepted the debt", invalidating all issues regarding the CCA.

- I have seen a form of words somewhere along the lines of

"I am not disputing the existence of the debt, but rather that the original creditor and the Claimant has followed the necessary laws and regulations under which to enforce the debt".

 

I'm sure it was more elegant wherever I saw t.

 

Anyone have a better form of words?

[dx100uk]

using the card doesn't mean you latterly accept any unenforceable debt..

 

but you cant win judge lottery no.

 

in that situation above

you would revert to what you said in your defence../WS

[RedPillGuy]

Looking at the NOSIA and the DN - the arrears listed in the 3 NOSIA total £XXXX with the last missed payment being 21/4/12.

 

The DN was issued on 10/4/12 and says "to remedy your breach we must receive a payment of £XXXX by 24 April 2012"

 

Can a DN demand remedy payment for an amount not yet "missed" but that would fall during the remedy period?

 

Just asking because I though s88 required that the DN must clearly state the nature of the alleged breach;

 

All the DN lists is "Clause 1 and 8 of the agreement provide you must make the minimum payments when due" and "you are in breach of these clauses because you have failed to make the payments due and are in arrears"

[AndyOrch]

They will probably argue that they did not terminate on that date, instead it was several months later that they terminated. Any pointers to refute that?

 

Cause of action runs from the issuance of the Default Notice and the date the breach must be rectified by....(according to claimants solicitors and what most DJs accept).....irrelevant when they terminated it but most default notices terminate the account if the breach is not rectified.

So if you didnt rectify the arrears by 24 April 2012 then the account was terminated anyway.

[Bazooka Boo]

The DN was issued on 10/4/12 and says "to remedy your breach we must receive a payment of £XXXX by 24 April 2012"

 

The DN was dated the 10th, or you received it on the 10th?

[RedPillGuy]

The DN was dated the 10th, or you received it on the 10th?

 

Dated the 10th, so yes with service of 2 days, non compliant. Just looking at the legality of the remedy amount including a payemnt which , at the time of DN issue, was not yet due (although would fall due within the remedy period)

[mpmmpmpmp]

Does the amount due leave the account under the credit limit after payment?

[RedPillGuy]

Even with the missed payments, the account was still under the credit limit by about £1800.

 

My thinking is that the description of the breach is fairly generic, but the remedy amount is specific. The remedy can only refer to the breach at the time of the DN, not future anticipated breaches after the issue. therefore the remedy and ergo the quantified breach is overstated by £491, and is therefore a further reason the DN is defective?

[AndyOrch]

Even with the missed payments, the account was still under the credit limit by about £1800.

 

My thinking is that the description of the breach is fairly generic, but the remedy amount is specific. The remedy can only refer to the breach at the time of the DN, not future anticipated breaches after the issue. therefore the remedy and ergo the quantified breach is overstated by £491, and is therefore a further reason the DN is defective?

 

[RedPillGuy]

Put it in a SWS before the court date. or just bring it up on the day?

[AndyOrch]

Not worth a SWS for one point ...put it in your skeleton

[RedPillGuy]

Not worth a SWS for one point ...put it in your skeleton

 

That was my next point - I agree my WS was a bit verbose - how much detail in a skeleton? Any examples on the forum you would recommend?

[AndyOrch]

Bear with me

 

Skeleton Argument draft v2.doc

[RedPillGuy]

thanks Andy.

 

For the day itself 3hrs allocated. Proposed timetable is :

DJ reading time 45min

Claimants opening submission 15

Defendant opening 15

Examination of Claimants evidence 30 min

cross-exam claimant n/a (hearsay evidence)

Examination of Defendants evidence 30

cross-exam defendant 15

Claimant closing 30

defendant closing 30

Judgement 15.

 

Now, I think the 2 faults in the DN are my strongest arguments (14days not given, and incorrect remedy amount). Should I ask the DJ "to save the court's time" to deal with that issue first? Everything else is secondary. Of should I stick to arguing the less robust faults in the Agreement first and the invalid DN is a fallback position to that?

[AndyOrch]

I would play it by ear and weigh up the DJ on how you think he will handle the hearing...I personally would save that as a fall back if he was not entertaining the agreements deficiencies...you will know which to play first within 10 mins.

[RedPillGuy]

Court Tuesday.

 

Can someone have a look at the Claimants Skeleton Argument (attached)

 

They address all the point raised in my Witness Statement and contend them. In particular can someone provide any rebuttal to their argument that the lack of 14 days on the DN should be overlooked as deminimus (their paras 20 to 31)

 

Help!

ClaimSkel-React.pdf

[dx100uk]

I see they are running out all the usual cases DCA's have tried over all the years to circumvent the need for a real copy of any paperwork and not the crap they pull out of their filing cabinets to try and con the courts

[RedPillGuy]

A few points I could really do with some help on.

1. I had argued that the T&C were taken from 2 documents, but they argue at least the the Sch6 prescribed terms are in the min body, not the "click her" further T&C. Can it be the case that as long as the Sch6 terms are in the "4 corners" its valid? s61 states ALL the Terms and Conditions", other than implied terms.

2. I had further argued that the Agreement simply stated "once you have signed the agreement you will have a short time in which you can cancel it. We will send you exact details of how and when you can do this" s64 says A notice in the prescribed form" . Where can i find the prescribed format?

[AndyOrch]

Have a look at sec63 (2)...the prescribed format is part of the agreement and T&Cs of the creditors agreement

[RedPillGuy]

Have a look at sec63 (2)...the prescribed format is part of the agreement and T&Cs of the creditors agreement

 

Nervous now - court 12 tomorrow.

 

Any advice on their skelton? (attached above)

[AndyOrch]

It is what it is...you cant rebut a Skeleton...simply oppose it with your argument/evidence.Its very indepth for County Court purposes and I doubt that a District Judge would understand the majority of it.

[RedPillGuy]

It is what it is...you cant rebut a Skeleton...simply oppose it with your argument/evidence.Its very indepth for County Court purposes and I doubt that a District Judge would understand the majority of it.

 

they seem to be trying to muddy the waters - for example saying that s76 DN doesn't apply because they could have terminated under s98 contractual termination in any case - which is NOT the case they are fighting in court!

 

Also claiming that although the Court of appeal in Brandon saying 14 days is not deminimus - that because it was an appeal against a SJ, it only makes it arguable, and did not step away from Woodchester and Swayne "the court might overlook an error that is deminimus"

[AndyOrch]

This is a Fast Track claim and I would surmise that Skeleton Argument has been drafted by either a CCA expert Solicitor or Barrister and so that implies that they are going out for costs on this.

 

Stick to the basics...keep it simple and dont let them bamboozle the DJ...you will only have a limited time in court..use it wisely and argue it clearly...have copies of the cases and legislation to hand.