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    • There were express terms of repayment of the capital plus interest over 60 monthly instalments.  However, you are saying the Default has no effect, so that when charged-off the interest did not have to be rescheduled?   P.S. It may be irrelevant, I don't know, but I can’t see an acceleration clause in the CCA allowing them  to ‘call in’ the entire amount of interest on the 5 year loan?  Copy of the Ts & Cs from my original CCA attached. Clause 2 (c) refers to interest being charged until settlement, but I’m not sure that is an acceleration clause.   If you have any thoughts on the above they would be greatly appreciated. 20191120102845876.pdf
    • Just to add, I completely agree with you that a contract to prevent her leaving the employment would be completely unenforceable. However she properly should realise that the situation may be referred to in any references provided to her for a future job. Who is the employer? Their approach to this problem – which of course has been of their own making, is frankly bullying and unacceptable.
    • Please follow the link and read on this forum about estoppel. If she has received the payment completely in good faith – meaning that not only did she accept the fact that the payment was made properly and with authority, but also she had no reason to suspect that there was an error, then she will be entitled to say that they were estopped from recovering the payment – assuming that she no longer had the money and she had not used it to improve her lifestyle beyond what was normal for her. From the sounds of it, she may not be entitled to rely upon the doctrine of estoppel. You say that she was working 20 hours and she received 30 hours – which is a very substantial overpayment. She would have to persuade a court that she really had no way of suspecting that the money she was receiving had been paid to her in error. The courts apply very high standards if people try to rely on the doctrine of estoppel by way of a defence. In terms of them refusing to allow her to leave, they have no right to do this. It's complete nonsense – although they may well decide to hang on to any payment which is owing to her including holiday pay et cetera and she would find it very difficult to deal with this.
    • Hello All,   A friend of mine started work for a care home around eleven months ago.   From the very start they over paid her and it has just come to light.   I do not know for sure if she was aware of the over-payment, (she is cunning enough to be aware and dizzy enough to not notice!, with apologies to feminist readers!!).   The company has now demanded she repay the over-payment.  I am not clear what the sums are but she was contracted for around 20 hours a week and was paid for thirty so I would estimate 40 hours x minimum wage x 11 months so something like £3500.  (Please don't comment that this was a huge number that she should have noticed, I already know!).   At first they told her she could not leave until she had paid it back, finally an arrangement was made that she will repay at the rate of £50 per month and must settle the balance if she leaves before she has paid it back and they have made her sign a contract to that effect.   I take the view that whether or not she has an obligation to pay it back there should not be any contract that in effect ties her to the place.  She should be free to give notice and work elsewhere, any repayment should be at a rate she can afford and if she has a better job offer she should be able to take it without having to wait to pay back the overpay.   I would be most grateful for any CAG'ers opinions and comments on this matter and what her rights and obligations are. 
    • Just a further update! So far no documentation for SAR request. I have also trawled back through an old BT email account I am still using , found email conversations between myself , HR and union rep. There is mention of my ongoing case with the company, correspondence with HR about coming back to site for follow up interviews and dealings with my rep up to the point I handed in my resignation which was Feb 2014. As far as I can see these conversations prove that I was on suspended leave pending investigation. Coupled with the fact the SAR if it ever appears will not have these email trails as I suspect my works email account was deleted a long time back.  In terms of the mediation I have already noted that I do not have all the relevant information so this will render any mediation useless which should proceed it to court.  For now I will keep these cards close to my chest and provide those documents at a later date. I feel confident that a judge will throw this out on the grounds of their lack of evidence in the first instance. 
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Betty55

PRA Claimform - old MBNA Credit card debt ***Claim Dismissed***

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Yesterday I received a notification that the trial is on the 21st August and will last 1 day!

After coming this far I am now having second thought about continuing.

 

The main (or only) thing I think have to defend myself is the so called “Agreement” provided by the claimant.

 

I would appreciate an honest opinion from anyone as to whether anyone thinks it is worth the stress and taking time off work to prepare/attend if I don’t have a great case. I

 

can’t imagine why it will take a whole day and with it being fast track I think the claimant is planning to hammer the costs too.

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Well it is illegible and therefore pursuant to sec61 (1 c) CCA1974 ...unenforceable...along with the points stated by Shammy re section 127.

 

Assuming you get the right judge on the right day...up to speed on the CCA 1974.....he should follow legislation.

 

But if this is getting a little stressful Betty its your call...you have time to negotiate with the Solictor a settlement vis a Tomlin Order.

 

We appreciate this is not for everyone and we are fully aware its Fast Track with costs implications.

 

You must decide what best for you.

 

Andy


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Thanks Andy

Yes I have some thinking to do.

It’s a gamble on the DJ.

 

If I lose with costs and interest it will end up well over 20k on what was originally just under 13k. Part of me wants to fight it all the way but it is stressful.

 

On their DQ asking how many witnesses they intend to have they put a zero.

Was kinda hoping they may stick to it and not show up!,

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All DCAs put nil witness on the DQs..they dont call witnesses as the claimant and rely on representation.


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Hi Betty, just posting to say I'm looking in, should you need any help.

 

Sham

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Thanks Shamrock

I’ve buried myself in the paperwork for the last few few days and Even up until the last minute wasnt sure I could do it but

 

I did it, and the case was dismissed Yaaaaayyyy

 

Have a feeling it’s not the end of it and they will be back but it’s done for now

Support of everyone on here has really helped, another donation on its way

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well done Betty

 

could you expand on what it got dismissed for please

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Well I had 2 main arguments.

 

There was no evidence that I got a copy of the agreement at time of signing as 2 of the conditions were on the envelope you post it in and were difficult to read and the agreement was not linked to the account number of claim in either the documents or claimant WS.

 

The 2nd thing was the Default notice provided by the claimant.

This was never served on me and the one they provided referred to a breach of the wrong conditions so not compliant with s88.

 

The judge decided the dn issues should be dealt with first as if that part of the claim failed there would be no point looking at the rest.

 

In relation to the dn the thing was printed on paper referring to the FCA when the FCA did not take over the regulation of consumer credit until over a year after the date on the DN.

 

I argued that there is no way that dn could be a an actual copy or photocopy of a Valid DN .

The claimant had not accounted for these issues in their SWS despite me raising them in my WS.

 

There was no evidence the dn was sent.

The judge said if the person who had written the statement was there and a witnesss from mbna then they may have been able to explain the systems for sending DNS and how they are copied.

 

I said I questioned the provenance of the DN.

plus there was a significant difference in the monetary demand on the dn and a statement I had dated a few days later.

 

I think the DN was cobbled together either by the OC or PRA hence the errors made on it.

Someone dropped the ball on that piece of fiction

Edited by dx100uk
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Great news Betty! Hearing news of anyone getting one over on PRA/Aktiv Kapital gives me a bit of a thrill! :-)

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Thank you. I think they may try again though which is a worry but I’m just so glad that I went through with it. I will have to wait see what happens next but they definitely do some creative documents. A case that helped me as had some similar issues was PRA v Segal ......same DN issue 😀😀

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They can't try again Betty without a dam good reason and the courts permission, so I wouldn't stress about that possibility :)

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Really? I didn’t know if they were able to appeal it or have a second go.......it was nerve wracking but the DJ was good. It was listed for a whole day but was done in less than 2 hoursas he just tried the one issue 😀

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title updated

 

well done everyone

 

dx

 

 

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Oh yeh and I’m sure their costs were listed as about 2k. Think I went into the wrong job!

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They can only appeal if the judge made an error in law in his decision and in this case he was correct under the CCA 1974

 

plus they would have asked at the end of the hearing for permission to appeal

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Yes special thanks to dx and Andy

Another donation just made

 

I didn’t hear the rep ask for appeal "............but I was a bit distracted by nerves. Will a copy of the result be sent to me?

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yes the court will send you a copy of the judgment usually take a week or so

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Great thanks jon

I was lucky to get a good DJ. Straight away he seemed to have a grasp of the errors in case

I got the feeling the rep knew too. Came straight to me when I arrived and asked if I’d like to make an offer for repayments

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Excellent result ...decent judge by the sounds of it who knew and followed the CCA1974.(for a change)

 

And considering this was Fast Track..even more impressive.

 

Given the claim was dismissed on a default notice issue...it would be pointless trying again as it cant be corrected after the event.

 

Well done Betty

 

 

Andy


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Thanks Andy

 

Yes the DJ said he could not be sure the DN was ever sent.

Don’t think he was impressed the author of the WS did not attend.

Plus a few of the points I made in my WS were not responded to in their SWS.

 

I think that legal judgement helped as its rather curious how the defendant in that case also got a copy of mbna DN off PRA and it referred to breach of the wrong conditions when comparing to the CA. The same conditions that was in the one they sent me. And it was a 2012 DN on FCA paper.

 

I have one question.

Can PRA issues a new DN?

I thought it was only the OC who can.

 

I think the DJ said something to their rep along the lines of “well unless you can issue a default notice start again with this ....”

I wasn’t sure if he WAS being serious

Edited by dx100uk
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the OC is the only person that can issue a DN, DCA's cannot issue them

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Hi Betty

 

 

I really should not worry; I had a very similar experience with MKDP around three years ago and have heard nothing from them since.

 

 

Love

 

 

Vic

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Thanks

 

I just want it to be over......... I have other battles ahead so will be glad to know this one is done with

 

Betty

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