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    • Thanks BankFodder for your latest, I'm in complete agreement on the subject of mediation and will be choosing to decline mediation, the longer timeline is not an issue for me, I will happily let the going to court run it's course. I really appreciate the support from the Consumer Action Group. I'll post the email text I'm sending to Evri's small claims in answer to their recent defence response. Regards, J
    • Sec127 (3) repealed, now gone. S. 127(3)-(5) repealed (6.4.2007) by Consumer Credit Act 2006 (c. 14), ss. {15}, 70, 71(2), {Sch. 4} (with Sch. 3 para. 11); S.I. 2007/123, art. 3(2), Sch. 2
    • We used to recommend that people accept mediation but our advice has changed. The mediation process is unclear. Before you can embark on it you have to agree that you are prepared to enter a compromise – and that means that you agree that you are prepared to give up some of your rights even though you are completely in the right and you are entitled to hundred percent of your money and even though EVRi are simply trying to obstruct you in order to discourage you and also to put others who might want to follow your example off from claiming and even though they have a legitimate basis for reimbursement. Mediation is not transparent. In addition to having to sign up that you are prepared to give up some of your rights, you will also have to agree not to reveal any details of the mediation – including the result of the mediation – so that the whole thing is kept secret. This is not open justice. Mediation has nothing to do with justice. The only way of getting justice is to make sure that this matter goes to trial unless EVRi or the other parcel delivery companies put their hands up and accept the responsibility even if they do it is a gesture of goodwill. Going to trial and winning at trial produces a judgement which we can then add to our small collection to assist other people who are in a similar boat. EVRi had been leading you around by the nose since at least January – and probably last year as well – and their whole purpose is simply to drag it out, to place obstacles in your way, to deter other people, and to make you wish that you'd never started the process and that you are prepared to give up your 300 quid. You shouldn't stand for it. You should take control. EVRi would prefer that you went to mediation and if nothing else that is one excellent reason why you should decline mediation and go to court. If it's good for them it's bad for you. On mediation form, you should sign that you are not prepared to compromise and that you are not prepared to keep the result secret but that you want to share the results with other people in similar circumstances. This means that the mediation won't go ahead. It will take slightly longer and you will have to pay a court fee but you will get that back when you win and you will have much greater satisfaction. Also, once you go the whole process, you will learn even more about bringing a small claim in the County Court so that if this kind of thing happens again you will know what to do and you will go ahead without any hesitation. Finally, if you call EVRi's bluff and refuse mediation and go to trial, there is a chance – maybe not a big chance – but there is a chance that they will agree to pay out your claim before trial simply in order to avoid a judgement. Another judgement against them will simply hurt the position even more and they really don't want this. 300 quid plus your costs is peanuts to them. They don't care about it. They will set it off against tax so the taxpayer will make their contribution. It's all about maintaining their business model of not being liable for anything, and limiting or excluding liability contrary to section 57 and section 72 of the consumer rights act.     And incidentally, there is a myth that if you refuse mediation that somehow it will go against you and the judge will take a dim view and be critical of you. This is precisely a myth. It's not true. It would be highly improper if any judge decided the case against you on anything other than the facts and the law of the case. So don't worry about that. The downside of declining mediation is that your case will take slightly longer. The upside is that if you win you will get all your money and you will have a judgement in your favour which will help others. The chances of you winning in this case are better than 95% and of course you would then receive 100% of your claim plus costs
    • Nice to hear a positive story about a company on this form for a change. Thank you
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      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

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      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Sigma claim form - M&S CC.- help


Gallahad
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A recent judgment has highlighted that some store cards may have been improperly issued, meaning that card issuing companies may be unable to recover debts if the cardholder defaults on their repayments. In particular, store cards that have been “upgraded” to credit cards may be affected.

 

The cardholder involved in this case, Diana Mayhew, applied for a Harrods store card by post following a visit to the store. She received a store card from Harrods, which she used. Several years later she received an unsolicited upgraded credit card in the post. She activated the card and used it to make several small purchases. She also transferred the outstanding balance from several other cards to her Harrods account. Mrs Mayhew then found herself in financial difficulty, following which the card issuing company, Santander, sought to recover the debt. By the time the case came to court Mrs Mayhew’s account had a balance of more than £5,000.

 

However, the District Judge in this case found that the agreements between Mrs Mayhew and the card company were not enforceable and that the debt could not be recovered by the company. The full judgment can be read here.

 

Consumers are protected by the Consumer Credit Act 1974, which requires that an agreement must contain certain specific terms in order to be valid. The District Judge found that Mrs Mayhew had not been provided with any terms and conditions, either with the application form itself or when she received the card.

 

The District Judge also found that when her card was “upgraded” she should also have received a fresh agreement from the issuing company. The judge found that the upgrade was a modification of the original agreement. The nature of the card had changed from a card that could only be used at one particular store to a card that could be used virtually without restriction. This change meant that Mrs Mayhew should have received a new set of terms and conditions. As a result of the company’s failure to provide new terms and conditions the debt could not be recovered.

 

During the last few years many store card schemes have automatically upgraded their store cards to credit cards and it is very unclear how many of the customers involved received updated terms and conditions at the time of the upgrade. Commentators believe that many cardholders will be in the same position as Mrs Mayhew. However, the only way to be sure whether this is the case is to carefully investigate each individual cardholder’s personal circumstances.

:mad2::-x:jaw::sad:
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own thread created

 

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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Thanks for that ford but it appears I jumped the gun as it was not a converted store card but in fact an application for a credit card which I was persuaded to complete in store.

In view of this I would be grateful if Dx could change the thread title. There are several apparent anomalies which having jumped the gun once i am double checking before posting so watch this space. Sorry guys:roll:

G

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Thread Title changed.

 

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Any advice appreciated re summons from Northampton bulk centre for £12,000 M&S credit card alleged debt. The account was never terminated to my knowledge. My CCA request was answered with a copy of a signed application form and 4 pages of terms and conditions. The terms and conditions differ from a two page version sent one year previously.

I received and assignment notice supposedly from M&S which was sent in the same envelope as the assignment notice from Sigma SPV1 based in jersey. HL legal & collections are acting for Sigma. None of the documents mentioned in the POC have been sent with the claim.

G

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any chance poss barred? also, s127 3 cc act (now repealed) would be applicable (but, if signed app form is deemed a compliant agreement, then s127 prob satisfied).

any missold ppi? if so, counter claim on that.

Edited by Ford
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NO poss of barred until 2015. How can it be deemed compliant if the requirements of the CCA regarding information by the statute to be on or attached to the signed document.

How can it be enforceable when when the account was never terminated by the OC?

No PPI .

G

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then that would be something to challenge. ie was there a signed doc that contains all of the prescribd terms? as required by s127 3.

was there a compliant default notice?

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No prescribed terms on application form but 4 pages of terms and conditions which include the prescribed terms were sent when copy of the application form was eventually supplied in response to CCA request. However these are different terms and conditions to those sent months earlier which are only two page version. No terms and conditions were supplied at the time of signing the application.The default notice stated payment to be made 14 days from the date of the document which in fact arrived 5 days later therefore not giving the required 14 days to rectify.

G

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then, if the signed doc that they rely on has no prescribed terms then technically there should be no enforcement order as per s127 (3)(4) and the Wilson HL case. they will prob rely on 'reconstruction'. depends on J on the day unfortunately.

is the rest of the dn ok? Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.pdf‎

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some further cases for info:

Woodchester Lease CA case, Harrison HC case, Brandon/Amex CA case, re requirement for compliant DN.

Kotecha/Phoenix CA case re requirement for an accurate response re cca request.

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It has no prescribed terms. The rest of the DN seems ok but gives only 6 days to remedy and not the 14 days required by the act. I appreciate they will probably try to rely on a reconstruction but they cannot reconstruct a "termination notice" that was never sent as this too is clearly a requirement of the act. This seems to me to be my strongest defence.

G

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they can't 'reconstruct' a signed doc that needs to have all of the prescribed terms as required by s127 3. they would need to show that there was such a signed doc, and if they rely on that app form which you say has no prescribed terms then they can't. a recon could be acceptable post s127 (3)(4), but not before.

wouldn't rely too much on termination notice imo. dn is prerequisite re termination, and term'n can be implied without an actual term'n 'notice' eg a formal demand.

Edited by Ford
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Unless I have misconstrued it the act makes it clear under "FORM OF NOTICE TO BE GIVEN IN NON-DEFAULT CASES BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED TO

TERMINATE A REGULATED AGREEMENT" That the full amount cannot be claimed unless a termination notice has been given in the prescribed form.

G

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from what you have said, main issues:

compliance with s127 3,4 required - without which there should be no enforcement order per se.

compliant DN required - cases and statute say that there should be a compliant dn before any enforcement.

accurate cca request response required - if not accurate, no enforcement until.

cc act agreement formalities required.

and anything else?

Edited by Ford
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wilson case

'..More particularly, in terms of section 127(3), if an agreement does not contain all the prescribed terms, the court is not to make an enforcement order unless the debtor has signed a document which does contain all the prescribed terms'..

'..Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery..'

etc

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