Link/Kearns claimform - old MBNA debt - poss SB'd *** Claim Dismissed with Costs***

[NuggyPeach]

I have just received an email from Kearns with regard to their failure to satisfy my CPR 31.14 request stating:

 

As regards your request for the Default Notice, I am unable to agree that any Default Notice is disclosed in the Particulars of Claim by which you might be entitled to seek a copy under CPR 31.14. All that has been referred to is the action of default and the recording of the same.

 

Furthermore, as the Default Notice is a matter that has been specifically raised in defence of the claim, I would confirm my client’s position on the same in that S87 Consumer Credit Act 1974 only applies as a bar to a claim for accelerated recovery or other matter specifically set out in S87 Consumer Credit Act 1974. It is an established point of law that a Default Notice is not a pre-requisite for a claim for arrears.

 

If you refer to the terms and conditions of your Credit Agreement, as at the point of default in 2008, you will note that even upon the minimum payment of £25.00 per month, the outstanding balance claimed is fully in arrears based on the date you last made payment. Accordingly our client’s position is that there is no Default Notice required in any event for our client to bring its claim.

 

Struggling a bit to get my head around this and, as ever, would be interested in the opinions of my fellow CAGers. Is it, as I thought, legitimate to ask for a copy of the default notice? Notwithstanding that, are Kearns correct that in any case a default notice is not required for their claim?

 

And finally... Kearns have also supplied what they say is a notice of assignment. However it is not a letter from the orginal creditor, but from Link Financial Ltd. Again, is this legitimate?

 

Thanks in anticipation of your help

NuggyPeach

[unclebulgaria67]

Surely for there to be arrears, then an account must have been in default and a default notice issued. A default occurs when you don't meet the agreed repayments. Unless you had this notice, you would not know how much had to be paid to bring tne account back into good order, complying with the CCA.

 

Others with more knowledge will no doubt reply.

[dx100uk]

NP

If you go read other like claim threads you'll see this is pretty much std for Link

 

Same goes for the NOA. It doesn't have to come from the OC the buyer can use copied logos.

 

But anyway the rest of the mix and match paperwork is bogroll anyway

 

This must be close to being stayed now?

[NuggyPeach]

Hi! I filed my defence on 12.02.17 and until today had heard nothing.

 

Kearns have now sent me an email saying that unless an amicable solution can be reached in the next 14 days, they have been instructed to 'progress the claim by way of an application to court'.

 

Surely, if they genuinely believed they had a watertight case they wouldn't have hesitated and would have proceeded with the court claim they'd already initiated?

 

It seems to me they realize they're on dodgy ground, hence why now, all of a sudden, they're keen to agree 'an amicable solution' without taking this to court.

 

Any thoughts my fellow CAGers might have would, as ever, be much appreciated.

[dx100uk]

willy waving ignore

[NuggyPeach]

willy waving ignore

 

Your assessment is very much in line with what I was thinking. At the same time, I still have a few concerns.

 

Chiefly, while I'm pretty convinced the credit agreement doesn't come up to scratch and that, as long as I prepared properly, Link would lose were they to pursue this to court, it isn't a theory I'm overly keen to put to the test. That being the case, would be interested to hear from my fellow CAGers how likely, or otherwise, they think this is to happen.

[dx100uk]

the claim is stayed

speaks volumes upon how hopeful they were

simply a speculative claim...all link ever deal with..lemon debts.

 

 

forget about it

go enjoy your life.

[NuggyPeach]

Was rather hoping Link / Kearns had given up on this, but am disappointed to report that's not the case. Rather, they have successfully applied for the stay to be lifted and direction questionnaires to be issued.

Interestingly, in their application notice Link wrote:

 

Upon receipt of the Defence the Claimant sought to engage with the Defendant and exchange documents in an effort to attempt settlement and narrow the issues, regrettably this has not been possible.

This isn't entirely true.

 

 

While there was some exchange of correspondence, as detailed previously on this thread, the 'agreement' I was finally supplied with appears not to contain all the prescribed terms and, therefore, I would argue it has not been properly executed.

 

 

I called Kearns more than once to discuss this and on each occasion was promised a call back only for it not to materialise.

 

Be that as it may, any advice as to how I should now proceed would be gratefully received.

 

I presume I should complete the Direction questionnaire [small Claims Track], but have a few questions with regard to this:

 

[1] Can I do this electronically? I'd assume I can, but it's not clear that this is the case.

 

[2] Can my partner represent me at the hearing [he has no legal background but his grasp of all this is better than mine and, moreover, he's far more eloquent]?

 

[3] If the answer to [2] is yes,

does that mean my answer to D3 How many witnesses, including yourself, will give evidence on your behalf at the hearing? is two, ie my partner and myself?

 

[4] My original defence – see post timed at 17.56 on February 12

– was predicated upon Link / Kearns failure to comply with my CCA section 78 and CPR 31.14 requests.

 

 

This has now been partially remedied – although, as mentioned previously, I don't believe the agreement is enforceable

– therefore should this go as far as court, I'd like to revise my original defence.

How do I go about doing this?

 

Thanks in anticipation

NuggyPeach

[AndyOrch]

[1] Can I do this electronically? I'd assume I can, but it's not clear that this is the case. Not yet but you can complete it on your PC and print 3 copies

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?406099-LEGAL-N180-Directions-Questionnaire-(Small-Claims-Track)-**Correct-at-Sept-2016**

 

[2] Can my partner represent me at the hearing [he has no legal background but his grasp of all this is better than mine and, moreover, he's far more eloquent]? he can a company you

[3] If the answer to [2] is yes, does that mean my answer to D3 How many witnesses, including yourself, will give evidence on your behalf at the hearing? is two, ie my partner and myself? No just 1 yourself he cant speak on your behalf

[4] My original defence – see post timed at 17.56 on February 12 – was predicated upon Link / Kearns failure to comply with my CCA section 78 and CPR 31.14 requests. This has now been partially remedied – although, as mentioned previously, I don't believe the agreement is enforceable – therefore should this go as far as court, I'd like to revise my original defence. How do I go about doing this?

 

You dont...once you submit the DQ and the claim has been allocated you will then be given directions...part of the directions will be to file and serve a witness statement...this is were you can particularise your defence and add to it.

 

Andy

[dx100uk]

 

 

Was rather hoping Link / Kearns had given up on this, but am disappointed to report that's not the case. Rather, they have successfully applied for the stay to be lifted and direction questionnaires to be issued. no they simply paid a fee, a gamble.

 

Interestingly, in their application notice Link wrote:

 

This isn't entirely true.

 

While there was some exchange of correspondence, as detailed previously on this thread, the 'agreement' I was finally supplied with appears not to contain all the prescribed terms and, therefore, I would argue it has not been properly executed.

 

I called Kearns more than once to discuss this and on each occasion was promised a call back only for it not to materialise.

 

Be that as it may, any advice as to how I should now proceed would be gratefully received. you now know never ever to ring the claimant nor their fleecing sols.

 

I presume I should complete the Direction questionnaire [small Claims Track], but have a few questions with regard to this:

 

[1] Can I do this electronically? I'd assume I can, but it's not clear that this is the case. no you cant

 

[2] Can my partner represent me at the hearing [he has no legal background but his grasp of all this is better than mine and, moreover, he's far more eloquent]? no he cant

 

[3] If the answer to [2] is yes,

does that mean my answer to D3 How many witnesses, including yourself, will give evidence on your behalf at the hearing? is two, ie my partner and myself?

 

[4] My original defence – see post timed at 17.56 on February 12

– was predicated upon Link / Kearns failure to comply with my CCA section 78 and CPR 31.14 requests.

 

This has now been partially remedied – although, as mentioned previously, I don't believe the agreement is enforceable

– therefore should this go as far as court, I'd like to revise my original defence.

How do I go about doing this?

 

Thanks in anticipation

NuggyPeach

 

 

no you address the issues in your witness statement.

 

 

what date is the hearing?

dx

[NuggyPeach]

Andyorch / dx100uk

 

Thanks for your speedy responses - as ever, they're much appreciated.

 

There are just a few things arising from what the pair of you have said:

 

[1] Kearns have now sent me a copy of their directions questionnaire; in which they've put they'll have 0 witnesses, including themselves, giving evidence on their behalf at the hearing. How can this be?!

[2] I know the usual advice is not to enter into phone contact, but, be that as it may, I don't see how it's disadvantaged me here. I played ball – I should, at a push, be able to prove this by reference to my phone records – they didn't.

[3] dx100uk, further to your question above, unless I'm missing something, which is entirely conceivable, I don't as yet have a date for the hearing.

 

Thanks again

NuggyPeach

[AndyOrch]

[1] Kearns have now sent me a copy of their directions questionnaire; in which they've put they'll have 0 witnesses, including themselves, giving evidence on their behalf at the hearing. How can this be?! They either dont understand the question or they they do not propose to attend and will rely on their WS alone

 

[2] I know the usual advice is not to enter into phone contact, but, be that as it may, I don't see how it's disadvantaged me here. I played ball – I should, at a push, be able to prove this by reference to my phone records – they didn't.Irrelevant and counter productive

 

[3] dx100uk, further to your question above, unless I'm missing something, which is entirely conceivable, I don't as yet have a date for the hearing.You wont until you submit the DQ and get your Notice of Allocation with directions

 

 

Andy

[NuggyPeach]

Andyorch

 

That's pretty much in line with what I thought, but, nonetheless, reassuring to have it confirmed. With regard to [1], would it be unusual for them to rely on their witness statement alone? And, as an aside, at what point do I get to see their witness statement? I assume I won't get sight of it until after I've completed mine.

 

Thanks again

NuggyPeach

[AndyOrch]

1.No its not unusual for them not to attend.....but often they do at the last min once they receive your witness statement and know its going to be challenged.

 

2.All explained in the Notice of Allocation...which you will receive once you submit the DQ ...exchange of witness statements " should " be simultaneous but often not and sometimes they dont either bother submitting one.......so you know they are getting ready to discontinue.

[NuggyPeach]

Okay, I now have a mediation appointment scheduled for next Thursday afternoon [August 3].

 

Clearly, I've read the paperwork I've been sent and already know a bit about these from what I've learned on here. In addition, I've also looked at the following thread, which was useful:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?433408-Alternative-Dispute-Resolution-(Mediation)

 

As things stand, the thrust of my argument will be that the debt is unenforceable on the basis the credit agreement is, as dx100uk put it, 'bog roll' [see post #47 onwards]. At the same time, as you'll be aware, in order to secure a mediation appointment I had to confirm that I was open to reaching some kind of agreement.

 

With this in mind, I was proposing to say that while I don't believe the debt is enforceable, for the reasons outlined above, I would be open to agreeing some kind of token payment – ie a small percentage of the amount being claimed - to avoid the unnecessary hassle of a court hearing.

 

As ever, I'd welcome the thoughts of my fellow CAGers; in particular, does the approach I've outlined above seem reasonable? Moreover, if anyone has any further thoughts I'd be most appreciative.

 

Thanks in anticipation

NuggyPeach

[dx100uk]

have you received all the paperwork that you require to effectively defend the case from the claimant

IMHO NO - so you tell the mediation service that. mediation will fail.

[NuggyPeach]

The claimant will say that they have supplied all the requisite paperwork;

my argument is that the credit agreement does not fulfill all the necessary criteria, thereby rendering it invalid.

[AndyOrch]

Then thats what you state to the mediator

[NuggyPeach]

That was very much my intention.

 

However, as I understand it, mediation depends on both parties being open to the idea of reaching some kind of settlement.

 

With that in mind, while I'd hope if this were to proceed to court the judge would rule in my favour,

 

I'd be open to the possibility of agreeing to a much-reduced settlement figure in order to avoid this scenario.

 

Was hoping you might be able to offer some reassurance that such an approach is a reasonable one.

 

Thanks again for your input

NuggyPeach

[dx100uk]

Why do you keep offering to give in and get fleeced??

[NuggyPeach]

I've no intention of 'getting fleeced', but, unless I've misunderstood, both parties must enter into mediation with a view to accepting some form of compromise and, thereby, avoiding a court case.

 

For my part, I won't contemplate any settlement which involves more than, say, 20% of the amount being claimed, but would be happy to pay that to conclude the matter without the need for a court hearing.

 

If my understanding of the mediation process is incorrect then, please, tell me how you would propose I should proceed!

 

As ever, thanks for the input

NuggyPeach

[AndyOrch]

That was very much my intention.

 

However, as I understand it, mediation depends on both parties being open to the idea of reaching some kind of settlement. With that in mind, while I'd hope if this were to proceed to court the judge would rule in my favour, I'd be open to the possibility of agreeing to a much-reduced settlement figure in order to avoid this scenario. Was hoping you might be able to offer some reassurance that such an approach is a reasonable one.

 

Thanks again for your input

NuggyPeach

 

Then you let that be known in mediation.......inform the mediator that although you are in receipt of all the documents...the agreement that the claimant wishes to rely upon is deficient and unenforceable, however you are open to considering a much reduced settlement figure ?

[NuggyPeach]

One final question – for now at least: am I right in thinking the mediator isn't a 'legal eagle' and, that being the case, sharing the document which I believe is deficient and unenforceable with them ahead of the hearing isn't a possibility?!

[dx100uk]

correct

[NuggyPeach]

Busy prepping for this afternoon's mediation call.

Have my main argument, which will revolve around the unenforceability of the credit agreement with which I've been supplied, fairly straight in my head, but there are just a couple of other things I'd like to be a little clearer on.

 

[1] Kearns have failed to comply with my CPR 31.14 request for a copy of any default notice

– see post #52 on this thread

– and are maintaining that it is 'an established point of law that a default notice is NOT a pre-requisite for a claim for arrears'.

 

 

However, it was my understanding that a debt cannot be subject to legal action, or sale, unless such a notice has been issued. Am I correct and, if so, is this something worth pursuing on the mediation call?

 

[2] As outlined on this thread there are glaring inconsistencies in the paperwork I've been sent

– chiefly, the credit agreement refers to [prescribed] terms & conditions which are not there, thus rendering it unenforceable.

 

 

I assume I should argue that if what I've been sent is a 'true copy' of the original credit agreement then it is unenforceable, rather than that it seems unlikely that it is in fact a true copy[?].

 

Thanks in anticipation

NuggyPeach

 

Thanks

NuggyPeach