PRA/? claimform - old Halifax Card 'debt'***Claim Dismissed***

[SaveTheSheck£es]

Well if they couldn't get your agreement at mediation..I doubt they are likely to proceed...but we shall see.

 

Andy

 

Hi Andy,

The mediator had said our call had ended

then 5 mins later i got a further call

Mediator asked if the agreement i was looking at contained the words at the top "This is a Credit Agreement Regulated by the consumer credit act 1974" I said YES

and that same document does not contain all the prescribed terms of a credit agreement .. can you relay that to claimant ?

 

The claimant just wants to make sure we are talking about the same agreement that you are contesting the mediator said

I said why is there another one then?

 

No that's the same agreement the claimant refers he said

whether mediator actually had it hand i got no idea .. but never stated he was reading from it at anytime.

 

Any help on the best approach to how i can put fwd my case to rubbish this so called agreement is obviously what i will need to do should this case move on to next step.

 

HSBC v Carey has prev been quoted to me to read .. but what i need to reference best i have no idea this mo intime .. there was so much info attached to the article i tried to read i got lost with it all tbh

 

Any guidance as per usual i'm very grateful for

 

Account was terminated on the back of a faulty dn

So only the arrears can be claimed not the full balance

If memory serves me correctly?

 

Hi dx,

i do not grasp what you mean here

(so only the arrears can be claimed)

arrears are you referring to Interest the original debtor Halifax added and that is ok? and also do you mean PRA can't add any charges?

[martin2006]

In order to terminate an agreement under the CCA 1974, a correctly completed Default Notice must be served. If it has not, or is defective, then the agreement hasnt been terminated and only the arrears to date can be claimed and not the full amount of the agreement still owing.

 

Hope thats a bit clearer.

[jackreacher]

Read from para1 to I think 28.. Importantly ; para 15 shows you the prescribed terms that 'Must' be in your agreement. (so far they are not) para 21 and 22 show that the Agreement is crap and the debt can not be enforced against you.

 

Check that Clause 2.2 mentioned in the Default notice refers to something relevant in your terms and conditions. If it does not this will also make the DN bad as it refers to nothing and casts doubt upon their evidence.

 

harrison V link explores your Agreement and at para 55 and 7? states not having 14 days makes the DN bad..your Judge should follow this if you show him.

 

http://www.bailii.org/ew/cases/Misc/2011/23.html para 11 is about a bad DN and why it is not de minimis to help your argument.

[mercyblue]

Whilst not a particularly relevant case to quote (the one in the previous post), considering it has nothing to do with dates on a DN and there are loads of other issues. Para 15 however is somewhat interesting

 

"It is also argued that notwithstanding such technical breaches of the default notice, if the Defendant cannot show any prejudice then the notice nevertheless should be allowed to stand and the Claimant should be allowed to proceed with the action. First of all, it does seem to me inherently prejudicial if a notice is defective in more than just de minimis fashion"

 

Which is the argument the claimant will use should the question of the DN arise. Personally I'm of the opinion of the case in this thread the slight defect in the DN would indeed be considered de minimis. Of course it doesn't matter what my or anybody's else opinion is apart from the judges.

 

Now regarding the prescribed terms. What is the argument here - been a pre-april 2007 you're going to try and invoke S127(3). Once again it's not that simple. That clause states “unless a document… containing all the Prescribed Terms… was signed by the debtor” . So what you are really saying is the agreement was defective from the start.

The failure to supply them later does not itself invalidate the claim, clearly providing the prescribed terms from your original agreement of course shows you did indeed sign a document containing the prescribed terms.

Now the onus is on the creditor to show there was a properly executed agreement they will be using the usual phrases of "on the basis of probability" etc to try and ride roughshod over that.

[jackreacher]

MB Please read carefully the case quoted is an argument against de minimis!

 

http://www.bailii.org/ew/cases/Misc/2011/23.html para 11 is about a bad DN and why it is not de minimis to help your argument.

 

I also referred to harrison V link is about, not being given the statutory 14 days!

 

MB..Didn't you post about the first case of Brandon 2010..referring to it as the authority on the 14 days ?

 

At a hearing on 25th May 2010 before HHJ Denyer sitting as a judge of the High Court at Bristol County Court, Mr Brandon’s appeal against summary judgment was dismissed.

 

HHJ Denyer noted that Mr Brandon did not deny that he owed Amex money. HHJ Denyer also noted that no enforcement action was taken against Mr Brandon within 14 days of the date of the default notice.

 

HHJ Denyer concluded that to the extent the s.87 default notice served on Mr Brandon was defective due to the nature of the defects and the prejudice caused to Mr Brandon as a result of such defects was de minimis. Judgment in favour of Amex was upheld.

 

In a hearing on 12th and 13th July 2011, the Court of Appeal reversed this decision. Noting the threshold test for summary judgment at Part 24 CPR,

 

'The Court found Unanimously ' that Mr Brandon did indeed have a real prospect of success with his defence based on the invalidity of the notice.

 

The Amex case based on default was, in the view of the Court, untenable. The default notice on its true construction did not give Mr Brandon the requisite 14 clear days in which to remedy his breach.

 

A failure to comply with the time period provided by statute could not be overlooked as de minimis. If the default notice had not or might not have allowed the minimum statutory period for Mr Brandon to remedy his default then it was at least realistically arguable that such a defect in the notice could not be dismissed as de minimis, both as to the nature of the defect and the prejudice caused thereby.

 

To refer to the 2010 Brandon as the be all of A DN as you do .. I just don't get it.

 

-----------------------------

 

YOU only quote part of paragraph 15, why? Thats just a wrong! When in the second part of that paragraph 15, that You missed out the Judge states it is not de minimis! How is this helping any potential defendant?

 

para 15 in full!

It is also argued that not withstanding such technical breaches of the default notice, if the Defendant cannot show any prejudice then the notice nevertheless should be allowed to stand and the Claimant should be allowed to proceed with the action.

 

First of all, it does seem to me inherently prejudicial if a notice is defective in more than just de minimis fashion. Mr. Burney points out that service of a default notice means an adverse credit report with a consequential adverse credit rating.

 

It might be suggested perhaps he already had some adverse information on his credit rating because he had been in arrears with this agreement back in 2005 and 2006.

 

Perhaps his argument on prejudice cannot be taken too far, but nevertheless I consider this to be more than de minimis and I am of the view that this default notice is not valid, which means the Claimant has to start again.

 

That of course is if it can fill in the evidential gap and indeed demonstrate that there is a valid assignment from which it can itself derive title to this particular claim.

 

As we can see in Harrison v link in the high court 'The slight defect' of not having 14 days is not De Minimiss.

 

I will run through it tomorrow morning now STS as I have only just got home.

 

Regards

 

Andy

 

Thanks Andy,

The latest i can post will be Saturday so still got bit time

 

Hi Andy,

 

1 thing i have not referenced in the Witness Statement is anything relating to the added costs over the years that have been applied to the account, I have not mentioned any statements on the account .. I wondered if this was recco as i am deeming the credit agreement non existent.

 

Remember I was paying regular token monthly payments on the account for quite a few years, it was only when the DMC failed to renew their Licence that lead me to learn about CCA Requests which in turn brings me to present day

 

I have made numbered and referenced front pages to attach to each document Item, cross referenced also in my Witness Statement, this i see was suggested in one of Witness Statement guides i read up on you suggested i browse.

 

Hopefully i have drafted somewhat correctly, I shall await your next post.

 

many many thanks

[mercyblue]

I did read it carefully. Considering (according to para 11) no DN was issued by barclaycard and that the claimant issued their own DN which showed a different figure to their other documents. Then in para 12 it states "If you cannot afford to pay the balance in full you must send us a down payment equivalent to 40% of the balance outstanding within fourteen days of receipt of this letter"

 

Well that's something I've never seen before in a DN (40% of what for starters given there are two balances, not to mention it should have been an actual figure).

Seems to me the claimant as by their own admission couldn't provide an original barclaycard DN they made their own up and made a hash of it and rightly so the judge wouldn't accept it.

 

A fail to see why an original DN that doesn't account for 2 days of service is comparable.

 

I'm glad you brought up the Brandon case it's a complicated case with two appeals. The best summary of it I can find of it is here https://goughsq.co.uk/publication/default-notices-terminations-in-credit-agreements/

 

Now that does indeed say the defect may indeed not be de minmus nothing really has been properly resolved. It's also worth pointing out that this case was taken on by John Pugh Chambers on instruction from Trinity Law Solicitors of Huddersfield it's the third case down here http://www.johnpughschambers.co.uk/Cases.htm.

 

The problem with the Brandon case is that it's a summary judgement appeal, it's never been to a proper trial as far as I know. So all that appeal shows is that there was a triable issue with regard to the DN. You forgot to highlight the important issue "Noting the threshold test for summary judgment at Part 24 CPR,"

 

I haven't said that any fault in a DN is de minimus I have said in my opinion in this case specifically it would be but so what it's not my opinion that is of any consequence.

[jackreacher]

I meant read the whole of what I have written not just the whole of the link. Harrison V Link as well!

 

What you continue to say as in this 'savethesheckles' case, the DN not having the full 14 days to rectify is in your opinion de minimis? . You have to base that on something it can't be Brandon 2010 as you have previously stated so I am intrigued as to what? IMO the Brandon appeal just returned things to its previous state. Harrison was the was the important one for me.

 

I am here to learn, so is the thread poster.

 

"I fail to see why an original DN that doesn't account for 2 days of service is comparable". Harrison v link from the 'High Court' shows that not having 14 clear days is not de minimis, I see that you have not commented on the Harrison Case? I am genuinely interested in your reaction. Do not think I am arguing..different perspectives can and have lead to good things.

 

The bailii link is to show the thread poster, 'a bad Dn is a bad Dn', and does so.

[mercyblue]

The point of my original post about the DN was to demonstrate that invalid DN does not equal necessarily case thrown out.

 

 

I was trying to show it's usually somewhat more complicated than that most of the time.

The last thing I want to see is someone waltz into court thinking they have it in the bag and then get mugged by the other side,

 

 

you're not going to walk in say ooh look mr(s) judge there was no account taken of postal service with regard to this DN and the judge is merely going to say oh yes of course claim dismissed.

 

I think some of the posts following that amply demonstrate that.

 

Now you ask why I think it's de minimus.

You say I cant use the Brandon case not actually true the case was overturned on a point of law

(i.e the threshold of what can be done via a summary judgement) the actual issue wasn't addressed.

 

The claim was issued many years after the DN

indeed the defendant was paying for 7 years on the defaulted account

how has the lack of 2 days extra been prejudicial to the defendant?

 

 

Would the defendant have acted any differently given the extra two days? That would be my basis.

 

To say a 'bad dn is a bad dn' is again I think an over-simplification

every case needs to be viewed on its own merits, or lack of, as a whole,

which is what I am trying to do here.

 

Do I think a claim is going to be thrown out for a two day discrepancy 8 years ago?

Or is the judge more likely to see it as clutching at straws?

 

As for the Harrison case I presume you refer to this case[removed]

Edited September 22, 2016 by dx100uk
external link removed - dx

[Guest]

that sea gull link wont work on cag.

 

not forgetting the old Woodchester case, to consider in yr guys debate (though that was re different circs, and primarily re the amount).

 

imo though, generally, if a dn is non compliant, then it shld still be considered as maybe worth mentioning as part of a defence. depending on the circs. never know.

[dx100uk]

MB you should be well aware by now that we sadly cant allow certain links to external sites without permission.

[SaveTheSheck£es]

Wow ..there has been a lot of activity on here

 

Update ..

 

Mcol site shows .. case has now been transferred to the court i chose as of today.

 

Obviously the claimant sees the agreement is worth putting in front of a Judge then!

 

I am a bit lost with all the recent comments, and will need read over all of them carefully .

. the Default notice issue i have not really grasped,

but see be best for me to have a better understanding of that, whether major or not.

 

I am concerned now how to put a a good case fwd against the agreement,

as my main point of contention is based on that,

there has been a load said on here i will need to catch up with for sure.

 

Thank you for all your very kind help,

i would never have gone to Court with this tbh and def got this far ..

 

 

i thought from day 1 as the document the claimant sent me contained my signature ..

that was all in legal terms that would have been required to stand .

 

 

. to learn the agreement was deemed bog-roll is what has got me to this point .

. i just hope i can prove this with what i need to say in Court .

. this a 1st for me.

[Guest]

sheckles

if yr defence is re agreement requirements, then you might as well include the defective dn (if it was defective) as well, even if not 'major'. it could all poss add up.

[SaveTheSheck£es]

Thanks Ford, yes deffo .. the more the merrier suppose

[Guest]

yeah, the more non compliance with the Con Credit Act the better, hopefully.

 

if the J decides that any dn defect is 'demin', then so be it. at least it wld have been considered rather than not.

 

am not entirely up to speed with thread though, have you submitted a defence already?

[SaveTheSheck£es]

In order to terminate an agreement under the CCA 1974, a correctly completed Default Notice must be served. If it has not, or is defective, then the agreement hasnt been terminated and only the arrears to date can be claimed and not the full amount of the agreement still owing.

 

Hope thats a bit clearer.

 

Thanks Martin,

I have now grasped and understand the DN not being valid, amazing stuff really.

The arrears would = the amount of arrears up until the issue date on the Default Notice, which does quote an a mount of arrears.

If i have good ground on which to present these facts and would mean no debt bar the arrears were due .. i may have paid the amount of arrears =that was originally quoted over the years, i would need check.

Thanks for all the kind guidance, truly appreciated

 

yeah, the more non compliance with the Con Credit Act the better, hopefully.

if the J decides that any dn defect is 'demin', then so be it. at least it wld have been considered rather than not.

am not entirely up to speed with thread though, have you submitted a defence already?

 

Hi Ford,

Yes defence has already been submitted http://www.consumeractiongroup.co.uk/forum/showthread.php?458846-PRA-claimform-old-Halifax-Card-debt&p=4922347&viewfull=1#post4922347

 

My defence references,

I have asked for a Copy of the DN by way of CPR 31:14

Claimant replied only sending me the same bog-roll agreement .

. and NO Default Notice!

 

 

the claimants response said plz find enclosed a copy of the original agreement together with it's supporting terms and conditions.

 

NOT A MENTION OF THE DN I REQUESTED IN THE CPR 31:14

 

Defence

 

The defendant contends that the Particulars of Claim are vague and generic in nature. The Defendant accordingly sets out his case below and relies upon CPR 16.5 (3) in relation to any allegation to which a specific response has not been made.

 

1. Paragraph 1 is accepted I have in the past had financial dealings with halifaxicon (LLOYDS) however I requested clarity by way of a section 78 request, sent signed for 29/12/2015 and shows as received signed for on 30/12/2015. The claimant has yet to comply and therefore remains in default.

 

2. Paragraph 2 is denied I do not recall the exact date or nature of any breach Therefore I have sought clarity by way of a CPR 31.14 request sent signed for 16/06/2016 and shows as received signed for 17/06/2016. The claimant has yet to comply.

 

3. Paragraph 3 is accepted I do vaguely recall receiving something purporting to be a Notice of Assignment in accordance with S136 Law of Property Act 1925.

 

4. It is therefore at this time denied with regards to the Defendant owing any monies to the Claimant, and the Claimant is therefore put to strict proof to:

 

(a) show how the Defendant has entered into the agreement; and

(b) show how the Defendant has reached the amount claimed for; and

© show evidence of any breach and service of a Default Notice and subsequent Notices of sums in arrears

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

5. As per Civil Procedureicon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

6.On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer crediticon Act 1974.

 

7.By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief

[Guest]

Hi Ford,

Yes defence has already been submitted http://www.consumeractiongroup.co.uk/forum/showthread.php?458846-PRA-claimform-old-Halifax-Card-debt&p=4922347&viewfull=1#post4922347

ah ok. cheers.

you mentioned a dn in there so should be ok. can mention the dn issue in the witness statement if applicable.

[SaveTheSheck£es]

ah ok. cheers.

you mentioned a dn in there so should be ok. can mention the dn issue in the witness statement if applicable.

 

Ford that sounds good,

 

I am feeling more positive with the DN now contributing and feel could add fuel to the fire whatever

 

Read from para1 to I think 28.. Importantly ; para 15 shows you the prescribed terms that 'Must' be in your agreement. (so far they are not) para 21 and 22 show that the Agreement is crap and the debt can not be enforced against you.

 

Check that Clause 2.2 mentioned in the Default notice refers to something relevant in your terms and conditions. If it does not this will also make the DN bad as it refers to nothing and casts doubt upon their evidence.

 

harrison V link explores your Agreement and at para 55 and 7? states not having 14 days makes the DN bad..your Judge should follow this if you show him.

 

http://www.bailii.org/ew/cases/Misc/2011/23.html para 11 is about a bad DN and why it is not de minimis to help your argument.

 

Thanks Jack,

 

I will deffo be having a very good read and taking notes, could be just the ticket

 

Many Thanks

[Guest]

I have asked for a Copy of the DN by way of CPR 31:14

Claimant replied only sending me the same bog-roll agreement .. and NO Default Notice! the claimants response said plz find enclosed a copy of the original agreement together with it's supporting terms and conditions.

NOT A MENTION OF THE DN I REQUESTED IN THE CPR 31:14

its unlikely to be produced re a 31.14.

at court, they wld need to show that one was issued ie sent (if applicable), and it was compliant (a template might be produced).

if you can show that what they sent wasnt compliant then good. (showing that will accept that one was sent)

[SaveTheSheck£es]

The DN i have is from the Original creditor not the Assignee PRA

[Guest]

The DN i have is from the Original creditor not the Assignee PRA

thats the one that matters.

is it defective?

[SaveTheSheck£es]

Account was terminated on the back of a faulty dn

So only the arrears can be claimed not the full balance

If memory serves me correctly?

 

Thanks dx,

Finally grasped exactly how this relates

 

Many many thanks as usual

 

thats the one that matters.

is it defective?

 

Hi Ford

DN is here: http://www.consumeractiongroup.co.uk/forum/showthread.php?458846-PRA-claimform-old-Halifax-Card-debt&p=4947374&viewfull=1#post4947374

 

Defective DN ..

as not allowed any days for service (2 Days Postage)

 

Indeed he was BB.

Your post sort of shows the point I was trying to get across.

Lets say for arguments sake the DN was deemed faulty.

Could a new one be issued 8 years later (I would suspect not)

 

but if so by whom

the original lender?

the DCA ?

Would a DCA's license even allow it to issue a DN?

Has the original contract actually been terminated?

How if it wasn't terminated by a DN? etc

You get the point?

 

A lot of times things that might initially seem straightforward actually are anything but.

 

Thanks mercyblue,

 

I appreciate any help/guidance

There is so much to take in as a noob in this field for sure.

I get the point not to assume anything .. that's for sure!

 

As long as i can put my case fwd to the best of my ability and have factual info that relates, I would have done my best.

 

Ii find all the very kind help from CAG more than kind, and always welcome any comments.

 

Many Thanks

[Guest]

one of those that gives 14 from its issue date rather than the service date.

note also the underlined lettering, not quite compliant according to the def notice regs.

 

http://www.johnpughschambers.co.uk/Consumer%20Credit%20(Enforcement,%20Default%20and%20Termination%20Notices)%20Regulations%201983.pdf

 

overall, demin or not? i dont know, but probably demin. is the amount correct?

[SaveTheSheck£es]

I would expect amount to be correct would need check for sure .. does not ring any bells not being correct tbh.

 

Thanks Ford,

I chk that dn issue regs

[dx100uk]

check that £622 does not include any £12 penalty fees in it.

[SaveTheSheck£es]

Will do dx,

Will update tomorrow