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

[NuggyPeach]

When you get there, the other side might approach you for a 'chat' about the case before. up to you whether to or not.

 

All the advice I've seen on here is that I should decline any such offer should it occur. Is there any reason for not doing so?!

[dx100uk]

Imho no...

[NuggyPeach]

Sorry but don't think anyone has answered this:

 

Had been my intention to pen a short statement I could read in court outlining my case. Is there any merit in this or am I unlikely to get the opportunity to share it?

 

Any thoughts anyone might have would be much appreciated.

[AndyOrch]

You can..no harm having one ready in case the Judge does invite you to open or to give a synopsis ...but its normally the claimant that would open if invited to.

[NuggyPeach]

Again, that's helpful – thank you.

 

Must hit the sack soon in preparation for tomorrow, but, before I do, one final thing I'm still struggling a little to get my head around. As I've written in my witness statement:

 

15. In Point 23 of their Witness Statement, the Claimant’s solicitors maintain that a Default Notice was sent on / around September 24, 2008, and seek to evidence this by reference to the Activities and Memos Report contained at Page 33 of their bundle.

 



I have no recollection of ever having received a Default Notice be it from Link Financial Limited or the original creditor. Moreover, the Claimant solicitor’s assertion that a Default Notice was sent on / around September 24, 2008, is at odds with their Particulars of Claim which state: ‘The Defendant failed to make payment as required and by 30.06.08 a default was recorded.’ Indeed, I have in my possession an Equifax credit report dated 28.12.11 which confirms the date of the default as 30.06.08. [EXHIBIT H]

 



Furthermore, I am also in possession of a letter from MBNA, dated May 20, 2008, in which they confirm they are willing to accept minimum payments of £13 per month on my account and there is no suggestion that the account is about to be defaulted. [EXHIBIT I]

 



In these circumstances, there must be considerable doubt whether I was ever served with a Default Notice. This being the case, the Claimant is put to strict proof that a valid Default Notice was served pursuant to s.87[1] of the Consumer Credit Act 1974. Service of a notice on the debtor or hirer in accordance with s.88 is necessary before the assignee can become entitled, by reason of any breach by the Defendant of a regulated agreement.


 

However, the Claimant is maintaining that, in any case, a default notice was not explicitly mentioned in their Particulars of Claim and is, therefore, not required. Rather, they argue that 'as reflected within the varied terms and conditions at pages 22-28 0f the attached bundle, the Defendant was required to make, as a minimum, monthly payments of £25 or 1% of the balance, whichever was greater.

 

'The Defendant was thus required to have repaid the outstanding balance of £X,XXX.XX as the point of assignment in July 2008 within 50 months, no later than September 2012 and accordingly the outstanding balance claimed is fully in arrears. Accordingly there is no accelerated recovery by which s.87[1] of the Consumer Credit Act 1974 might present any bar to enforcement.'

 

Try as I might, I can't find a definitive answer to the question of whether in instances such as this one a default notice is required and would, therefore, very much appreciate the thoughts of my fellow CAGers.

[dx100uk]

from my andy notes folder.........

 

 

Default notices, litigation and section 127(3) of the Consumer Credit Act July 2010

.

For a creditor to enforce a credit agreement against the debtor,

he must serve the latter with a default notice,

this notice must be served in accordance with section 88 of the Consumer Credit Act 1974 (CCA).

.

Generally, the prescribed form of a default notice according section 88 is as follows:

.

"The default notice must be in the prescribed form and specify

.

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it

and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach,

and the date before which it is to be paid."

.

Section 127(3) of the Consumer Credit Act 1974

.

Should the debtor be sued for the outstanding amount,

it may be open to the debtor to raise an argument that the agreement is unenforceable

because it does not comply with the requirements of the Consumer Credit (Agreements) Regulations.

.

Agreements executed before 6 April 2007 are subject to sections 127 (3) & (4) of the Consumer Credit Act 1974 ('CCA').

Agreements entered into after that date are not by operation of the repeal under the Consumer Credit Act 2006.

.

The effect of sections 127 (3) & (4) truly displays the paternalistic nature of the CCA, in that where a breach of a prescribed term under regulation 6 and schedule 6 to the Consumer Credit (Agreements) Regulations 1983 is found, the agreement as a whole will be irredeemably unenforceable.

.

In other words, the lender cannot enforce the agreement or realise any surety under that agreement; the debt in effect is written off.

Regards

Andy

 

 

............

 

 

the claimant would have to produce the extract from the original creditors comms/account log printout that one was sent.

it needs to also be born-in-mind that MBNA used UK Mail not royal mail and often the delivery method did not meet the requirements of 1st class mail.

so the DN was not delivered in time [2 days]

 

 

Harrison re link rings a bell

https://cse.google.co.uk/cse?cx=partner-pub-0964707606882478:652l7hswbgv&ie=UTF-8&q=harrison+v+mbna&sa=Search+CAG#gsc.tab=0&gsc.q=harrison%20v%20link

[dx100uk]

1. On 3 October 2008 MBNA sent a default notice (TB4/1502). Paragraph 12 of Mrs Worden's statement dated 26 July 2010 reads as follows:
   
2. 
   




1. Exhibited to this Witness Statement at "NW3" is a copy of the default notice which was served by MBNA on the Claimant ("the Default Notice"). The Default Notice was dated 3 October 2008 and, in accordance with MBNA's standard procedure was despatched to the Claimant on 3 October 2008 by way of UK Mail's Business Class service which guarantees delivery within two days of despatch, including Saturdays. It is not, and was not in October 2008, the standard practice of MBNA to send default notices to customers by second class post. There is no reason why the Default Notice sent to the Claimant in this case would have been sent by second class post contrary to MBNA's standard procedures.
   

[*]

[*] Investigation by the Claimant who knows about such things revealed that the notice was sent by second class post. Mrs Worden's own investigations revealed that it was "possible" that this was so. Her manner indicated that this was an elegant way of conceding the point as in my view she had to. Thus subsequent investigation contradicted a hitherto firmly held position of the Defendant that the notice had gone by a suitable post and was served in time. It was not. It was issued and sent by second class post on 3 October 2008 arriving (as was to be expected) on 9 October 2008 and was stated to expire on 21 October 2008. Given the date of delivery, the expiry date should have been 23 October 2008. The notice was bad.

[AndyOrch]

I have no recollection of ever having received a Default Notice be it from Link Financial Limited or the original creditor.

 

Link cant issue a Default Notice as an assignee...only the OC

[NuggyPeach]

Well, what a travesty today was!

 

Arrived at the court in good time and reasonably confident of the case I was going to make. After a wait of more than an hour all parties were called into the hearing room.

 

The district judge was friendly and convivial and soon put myself and my partner, who was accompanying me, at ease. Unfortunately, from thereon in it was all a bit of a joke.

 

Firstly, the judge asked for details of the stay that had been lifted, but neither myself, nor the third-party solicitor representing Kearns, had them to hand. He didn't seem too concerned about this and on we went... momentarily at least!

 

It subsequently transpired the judge hadn't had sight of Kearns' witness statement; their representative maintained it had been filed – they would say that wouldn't they – while the judge conceded it could, conceivably, have been lost within the court building. To further compound the situation, the solicitor acting for Kearns hadn't been furnished with my witness statement, despite my having an email to confirm it had been received at their end.

 

On top of all this, Kearns' representative explained to the judge that she wasn't in possession of paper copies of any of the documentation on which she was intending to rely because her printer had 'blown up' earlier this morning.

 

In short, I, as a litigant in person, had done everything asked of me – and endured significant anxiety and stress as a result – while Kearns had, apparently, cocked up at every juncture. I hoped this might go in my favour, but the judge took the view that, given the circumstances, the case would have to be adjourned and the only question was whether as and when it was rescheduled both parties wanted to be present. This being the case, he called for a short adjournment while Kearns' representative sought directions.

 

During this break, she approached me and said her client would be willing to accept a 'reduced settlement' of £1,500 – not especially generous when you consider it's almost 50 per cent more than the alleged debt and includes a sum for interest pursuant to s.69 of the County Court Act 1984. Unsurprisingly, I declined.

 

The net result of all this was that we reconvened to agree the case would be rescheduled and, again, both parties would be in attendance.

 

As you might imagine, this has been dragging on since the turn of the year and, win or lose, I was very much looking forward to having it settled today. On the plus side, I now feel far less apprehensive about attending court, I've seen for myself what an absolute shower of 5hite Kearns and their representatives are, and I have a little more time to fine tune my arguments!

[Guest]

.....because her printer had 'blown up' earlier this morning.

 

i didn't think that old excuse washed anymore..

it seems they simply were not prepared. as you say, 'a joke'.

[AndyOrch]

So it went like a normal DCA claim hearing

[NuggyPeach]

Hi! Further to my most recent post, I wrote to Kearns to say how disappointed I was that, largely as a result of the incompetency of them / their advocate, the original hearing had had to be rescheduled. They fired back a letter refuting most of the points I made, in particular:

[1] They said there advocate had been in possession of a copy of my witness statement;

[2] They said their advocate attended court with a hard copy of their witness statement which she proffered to the judge.

Both of above assertions were nonsense and, having gone back to Kearns, they have now conceded as much, but are maintaining the issue is between them and their advocate. While I don’t altogether disagree, they must surely take some responsibility for their advocate spinning the judge a pack of lies – she told him the claimant hadn’t seen a copy of my witness statement, while Kearns accept that they were provided with this and, moreover, that they supplied their advocate with a copy.

What is more, Kearns’ advocate told the judge that they had confirmation that their witness statement had been received, prompting his suggestion that it might have been lost in the court system. I’ve asked Kearns what form this ‘confirmation’ took – given I was told quite explicitly by the court office that this didn’t happen – but they refuse to respond.

So, in short, the original hearing was cut short because Kearns’ advocate told the judge the claimant hadn’t been served with a copy of my witness statement [blatantly untrue] and, furthermore, that she had confirmation the claimant’s witness statement had been received by the court [extremely doubtful; even if it was received by the court, no mechanism existed to confirm this].

Notwithstanding all the above, I think I have an extremely strong case [as outlined previously in this thread], but, at the same time, it seems outrageous to me that Kearns / their advocate can behave in this manner and there is no comeback.

This being the case, I was just wondering if there is anything I can do to highlight these issues to the judge – the case has been rescheduled for next Thursday [November 9] – and, more to the point, whether there is any great merit in my doing so. As ever, all thoughts gratefully received.

[AndyOrch]

Little point to be honest...simply ask the Judge for costs in consideration of the claimants behaviour and causing unnecessary further costs...assuming you win that is.

 

 

Andy

[NuggyPeach]

Little point to be honest...simply ask the Judge for costs in consideration of the claimants behaviour and causing unnecessary further costs...assuming you win that is.

 

 

Andy

 

Would be grateful if you, or anyone else, can tell me a little bit about the etiquette for this. Clearly, my first priority is to win, but if that occurs then, given the circumstances, I don't think it's unreasonable to ask for some award of costs.

[AndyOrch]

Simply ask the judge as he summarises if it goes in your favour..I would prepare a breakdown bill of costs in advance.

[NuggyPeach]

Okay, off to court, again, this afternoon, so wish me luck!

 

Further to the last couple of posts, above, I contacted Kearns three / four months ago to point out the credit agreement with which they'd supplied me was not a true copy and they refused to enter into any dialogue. Had they done so, we might not be where we are today.

 

That aside, as mentioned previously, the last court date was curtailed because the judge hadn't received a copy of their witness statement and, moreover, their advocate claimed not to have seen a copy of mine – something which Kearns have now conceded was simply not true.

 

In these circumstances, should I win today, and I don't wish to tempt fate, would it be unreasonable for me to ask for the equivalent of two days' expenses – say 16 hours x £20 – in costs?! In actual fact, I've spent much, much longer than this preparing my case, but would just be looking for some kind of token payment to reflect the time and trouble the claimant has caused me.

 

As ever, any thoughts you guys might have will be gratefully received

NuggyPeach

[honeybee13]

Good luck from me, NP. Please let us know how you get on either way.

 

HB

[AndyOrch]

Okay, off to court, again, this afternoon, so wish me luck!

 

Further to the last couple of posts, above, I contacted Kearns three / four months ago to point out the credit agreement with which they'd supplied me was not a true copy and they refused to enter into any dialogue. Had they done so, we might not be where we are today.

 

That aside, as mentioned previously, the last court date was curtailed because the judge hadn't received a copy of their witness statement and, moreover, their advocate claimed not to have seen a copy of mine – something which Kearns have now conceded was simply not true.

 

In these circumstances, should I win today, and I don't wish to tempt fate, would it be unreasonable for me to ask for the equivalent of two days' expenses – say 16 hours x £20 – in costs?! In actual fact, I've spent much, much longer than this preparing my case, but would just be looking for some kind of token payment to reflect the time and trouble the claimant has caused me.

 

As ever, any thoughts you guys might have will be gratefully received

NuggyPeach

 

Your also allowed £90 per day in loss of earnings if you had to to take time off to attend.

 

Best of Luck NP.

 

Andy

[NuggyPeach]

Hurrah – I won!

 

Truth be told, my head's a bit scrambled right now, however, I'll do my best to recount the most pertinent parts of today's proceedings.

 

Firstly, I was a little disappointed to find myself up in front a different judge this time around – the last one had immediately put me at ease and, moreover, I thought I might get an opportunity to highlight the skullduggery Kearns' advocate had engaged in at the last hearing.

 

Of more concern, while this judge was happy for my partner to accompany me, unlike the previous one, she made it quite clear he would not be permitted to lend anything more than moral support. At the same time, she also expressed some surprise that the person responsible for Kearns' witness statement had not seen fit to attend.

 

I read a script, outlining the principal tenets of my case, namely:

 

[1] The terms & conditions I had been sent did not belong to my credit agreement and, that being the case, it could not be a true copy and, therefore, could not be enforced until this was remedied;

 

[2] Notwithstanding the above, the agreement was not properly executed because it did not contain all the prescribed terms and at the time this agreement was entered into s.127[3] of the Consumer Credit Act – which has since been repealed, though not retrospectively – rendered it irredeemably unenforceable.

 

At first I was a little flustered and was concerned the judge, who conceded before proceedings began that the Consumer Credit Act wasn't her area of expertise and that she'd only got first glance at the respective Witness Statements in her lunch hour, wasn't entirely buying into my argument.

 

Kearns' advocate then asked to cross examine me and this, I think, is where the tide started to turn. She seemed intent on pursuing a moral, as opposed to legal, argument – asking questions such as: Do you deny the existence of this debt? Don't you think you should repay it? – which I simply batted back, acknowledging that I'd had an MBNA credit card but making the point that, having looked into the legalities of the situation, it had become evident to me that MBNA / Link / Kearns had not observed due process.

 

After a while the judge was persuaded that the prescribed terms were not present in their entirety within the credit agreement with which I had been supplied. At this point, I thought it was game over, pointing out that while s.127[3] of the Consumer Credit Act has now been repealed it was not retrospective and, that being the case, my agreement was irredeemably unenforceable.

 

Unfortunately, or so I feared, the judge wouldn't accept that s.127[3] of the Consumer Credit Act didn't allow her to make an enforcement order on a pre-2007 credit card. To be fair, she did adjourn for 10 minutes to allow myself and my partner the opportunity to evidence that this was the case, but, while we were 100% sure that it was, in the time available, and with the court's decidedly average internet coverage, we were unable to do so.

 

So, the judge proceeded on the basis that, despite the deficiencies with regard to the prescribed terms, it was in her remit to make an enforcement order. However, she took the view that I was more prejudiced than the claimant by this – how, she asked, could I argue my case if I didn't know what the missing terms were? – and, on that basis, dismissed the claim.

 

She also agreed to a token payment of £50 in costs. The judge suggested our parking costs might also be added to this, but when Kearns' advocate started arguing about how long we had paid to park for I decided to be the bigger woman and forego an an additional £4 or £5 rather than cause Kearns' advocate any further distress, lol. That aside, the judge seemed slightly taken aback when she asked for 28 days to cough up.

 

All said and done, I think this was the right result, though it was slightly disconcerting that I was unable to persuade the judge that s.127[3] of the Consumer Credit Act was apposite. To this end, I'd be grateful if someone can point me in the direction of something to which I could have referred in order to convince the judge of this... anyone?!

 

No matter, the job's a good un so, it only remains for me to make a donation to CAG and, once again, thank all those – but especially Andyorch, dx100uk and RedPillGuy – who have contributed to this thread. Take it from me, I couldn't have done it without you!

[Guest]

well done

[AndyOrch]

Excellent NP well done great result.

 

" All said and done, I think this was the right result, though it was slightly disconcerting that I was unable to persuade the judge that s.127[3] of the Consumer Credit Act was apposite. To this end, I'd be grateful if someone can point me in the direction of something to which I could have referred in order to convince the judge of this... anyone?! "

 

As the Judge stated that the prescribed terms were not evident...and as DJ should be aware of what the PTs are in a credit consumer agreement...s.127 applies anyway pre or post April 2007

 

127 Enforcement orders in cases of infringement ;-

 

(1)In the case of an application for an enforcement order under—

(a)section 65(1) (improperly executed agreements),

 

(2)If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

 

3)The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

Section 61/65 is applicable even if she didnt agree sec 127.

 

 

Anyway great result and well done for arguing the above points.Thread title amended to reflect the result.

 

Regards

 

Andy

[NuggyPeach]

Andyorch et al

 

It's not inconceivable I'm confusing myself now - my head is still spinning after yesterday - but it was my understanding that s.127[3] of the Consumer Credit Act 1974 was repealed by the Consumer Credit Act 2007 [though not retrospectively].

 

Have I misunderstood?!

NuggyPeach

[theoldrouge]

It's well established in case law that s127(3)-(5) do not give the Judge any discretion at all for an agreement executed before 6th April 2007 because if the agreement fails to comply with s61(1)(a) CCA 1974 then the Court has no power to enforce

[AndyOrch]

Andyorch et al

 

It's not inconceivable I'm confusing myself now - my head is still spinning after yesterday - but it was my understanding that s.127[3] of the Consumer Credit Act 1974 was repealed by the Consumer Credit Act 2007 [though not retrospectively].

 

Have I misunderstood?!

NuggyPeach

 

That is correct...its the retrospectively part that claimants try to mislead Judges in claims with...you can repeal legislation but you cant amend agreements already in force pre the repeal.

[NuggyPeach]

Hi guys!

I'm back again in hope of further guidance.

 

As mentioned in post #144,

when I went to court the judge note only ordered that Link Financial's claim was dismissed,

but that:

 

[2] Claimant to pay the Defendant's expenses of £50, payable by 4:00pm on 6 December 2017.

 

Needless to say the deadline has now been and gone and I've heard nothing,

less still received any payment, from Link

– it's not the £50 I'm bothered about but the principle.

 

That being the case, my question is how best do I go about making sure Link cough up?

 

In the first instance,

I'm minded to send them a strongly worded email,

but I'd like to make clear in it exactly how I intend to proceed if they don't play ball pronto.

 

I've done a bit of Googling and it seems a Warrant of Control may be a possibility,

but I'm not entirely clear if this is an option for a defendant,

as I was,

rather than a claimant.

 

Furthermore,

at one point the following says a Warrant of Control can be issued for any amount up to £5,000 while elsewhere in the same document it suggests the amount being sought must be at least £600.

 

https://www.moneyclaimsuk.co.uk/PDFForms/EX322.pdf

 

As ever, any thoughts anyone might have will be gratefully received.

NuggyPeach