Cabot/Mortimer claimform - Sainsburys credit card debt

[obvious]

For reference here's 87 from http://www.legislation.gov.uk/ukpga/1974/39/section/87

 

Quote

 

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

     (a)to terminate the agreement, or

     (b)to demand earlier payment of any sum, or

     (c)to recover possession of any goods or land, or

     (d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

      (e)to enforce any security.

(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective
 
(3)The doing of an act by which a floating charge becomes fixed is not enforcement of a security.
 
(4)Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

[F1(5)Subsection (1)(d) does not apply in a case referred to in section 98A(4) (termination or suspension of debtor's right to draw on credit under open-end agreement).]
 

 

Edited May 8, 2019 by obvious

[obvious]

I'm not great at interpreting legalese. Is there wiggle room here for the judge to uphold their claim? Would this potentially be an error in law?

Edited May 8, 2019 by obvious

[AndyOrch]

Well its 1a that you would rely on and hope the judge does not fall for the old " on the Balance of Probabilities " I  see there is a screen shot of details of the Default so there must have been one sent......

 

Although that screen shot can not be evidenced to Sainsburys accounting services software and possibly recreated to fit the claim.

Evidence of a default is not evidence of service and does not satisfy section 87(1)

[obvious]

I understand it would not indicate advice but if it were you, would you let them make the next move?

[AndyOrch]

Possibly.....but with hindsight and seeing the varying levels of quality District Judges in the UK ....some that follow the CCA1974 to the dot and some that prefer the balance of probabilities route and tend to side with claimants...its impossible to predict an outcome.

 

If you can stand a further £255 application fee (thats what it costs for their next move) and are willing to wait if they actually do it......you could always try to negotiate a settlement before that stage is finalised for hearing...but its  your call.

[obvious]

Well this is stressful

 

Perhaps it would be useful (or at least cause no damage) to write to them raising the points you've made in the last few posts?

[AndyOrch]

The following may be of interest when the claimant makes application for SO/SJ and you get a bad Judge.

 

https://www.consumeractiongroup.co.uk/topic/412568-cabotrestons-claim-form-old-vanquis-card-debt/page/6/#comments

 

I personally would wait and stand another £255 to see if they do make application ...but thats me not you

 

[obvious]

How does this look as a response to their latest letter? Would it be harmful to my case?

 

On the evidence you have provided after 2 years ie some cobbled together screenshot from who knows where, I believe the requirements of Consumer Credit Act 1974 c. 39Part VII Default notices Section 87 have not been met.
 

That screenshot can not be evidenced to Sainsburys accounting services software and is possibly recreated to fit the claim.
 

In any case, evidence of a default is not evidence of service and does not satisfy section 87(1)
 

Further, you have not provided an entire original agreement, just one page. The remainder is simply a stock printout. With regard to  Section 61 1(a), Section 127 1(a) and Section 65 (1), an application form cannot be an executed agreement unless its returned back to the applicant after application and executed with all the prescribed terms.

 I believe that the case does not stand on its own and that even in the event of a district judge finding otherwise, there may be  the possibility of an error in law if failing to consider the above.

[AndyOrch]

I wouldn't.......your last letter from them may have been spewed out by by software and your response could push them to actually make application.

[obvious]

ok, after reading the law gazette piece on Carey v HSBC Bank [2009] EWHC 3417 (QB), I don't understand if/how it might apply to my case? 

 

ref: https://www.lawgazette.co.uk/law/consumer-challenges-to-bank-charges-and-loan-agreements/56790.article

[AndyOrch]

It doesn't...your agreement was pre April 2007 and you have not been given a reconstituted version ..what you have uploaded is the original with your signature.

[obvious]

Right, I'm holding my horses. Let's see what happens next.

[obvious]

On 23/04/2019 at 15:41, Andyorch said:

...That default summary from their own internal systems was recently dismissed on another thread as there could be no proven link to the OC or the service of a valid default notice pursuant to sect 87.1 CCA.

 

Andy

 

Just leaving this here as a reminder to ask you if you've got a link to this. I was unable to find it.

[AndyOrch]

I couldn't find it either...but I deffo read it and advised on the thread  

[dx100uk]

gotta pop out 

i'll see if I can find it later tonight

 

dx