** won ** Moriarty Law v MasterCoder (QuickQuid)

[MasterCoder]

I've uploaded the Witness Statement that I've received from ML.

Hoping someone like Amethyst might be able to help me. In their statement, paragraph 5, they claim that on the 24th January 2013 I 'entered into an online Running Credit Agreement with QQ' and that the 'agreement had no fixed or minimum duration'. That's patently not true.

The question I'm asking is this, they have provided a credit agreement in their statement which is the same one I posted here earlier in this thread. That agreement states, quite specifically, that it is a fixed sum loan with a fixed term. Can they enforce any judgement without a matching contract that backs up their Witness Statement?

My only concern is I'm going to get lumped with a hanging judge who'll order me to pay something anyway, I just want to make sure I've got this stitched up and I get my valid points across clearly to the DJ

Thanks

[Amethyst]

James does seem to be having trouble understanding the agreement or amount loaned doesn't he?

Going to have a read back through the thread and I'll come back with any points you might want to make xxx

[Amethyst]

What are pages 28-29 of the exhibits ?

[MasterCoder]

Amethyst sorry for not getting back to you last night.

The exhibit on page 28 is the statement of account that I uploaded further back in this this thread. Page 29 is some text that's on the tail end of that page and not really of any substance. I'll upload the statement just in case though.

The statement does show £250 as the opening amount so that matches but the credit agreement they have added shows quite clearly it's a fixed sum loan for a fixed duration.

I've already got grounds to state that the notice wasn't served properly thanks to Rob so that' my reserve and there's the total lack of a default notice that they refuse to even entertain in correspondence or provide copies of. Not sure what priority I should give to those points.

Thanks

MC

[Amethyst]

Ahh yes. Good. That statement is dated March 2018 says the agreement is still live as it talks about settling early and requesting a settlement figure. So no evidence of default or termination.
theres a later statement dated July 2018 which also doesn't say the account is terminated or defaulted.

In any case, I would argue that in order to give me more money, a new agreement would have had to have been in place since the original is for a fixed amount and NOT for the new amount.

https://www.legislation.gov.uk/ukpga/1974/39/section/10
para 3 of their WS says fixed sum
para 5 says running credit
Remember this from your defence too

15. It is the Defendant's contention that the agreement concluded after one month with the full amount due having been settled in full.
16. It is the Defendant's contention that were a further advance of £50 obtained this would have been as part of a new agreement dated 24/02/2013 which served to settle the agreement dated 24/01/2013. The Defendant denies entering into any such agreement and the Claimant is put to strict proof thereof.

[MasterCoder]

Thanks Amethyst

I'm getting quite anxious about this whole thing now, D-Day almost so I'm trying to get my facts right. I've read horror stories on here about Judges who seem to disregard requirements under law and just issue a judgement in any case.

So my points that I'll make are. Point me out if any of this is wrong.

1. They have provided a Credit Agreement for a fixed sum loan agreement but state in their WS that it is for a running credit agreement for a different amount. Their PoC also state a total amount that does not match that on the purported agreement. If it is there contention that there was an initial amount borrowed then the original agreement would be settled and a new agreement should have been formed. They haven't provided the new agreement as required under s77/78 of the CCA and therefore cannot enforce payment.
2. It is denied that any compliant default notice has been served and the claimant has failed to prove that such a notice was served on me pursuant to the requirements of S87 of the CCA. Nor can they show any default notice compliant with s88(4A) of the CCA and therefore cannot enforce judgement. Infact, the claimants own evidence contains a 'statement of account' that considers the account live and makes no mention of termination or default and even invites me to settle early.
3. The claimant states that their Witness Statement that Notice of Assignment was served on me on the 4th January 2018 by email. The domain for the email address which the claimant states notice was sent to, expired in December 2017 and any emails to that address would have been automatically returned as undeliverable with a corresponding report stating why delivery failed. The claimant has failed to correctly notify me of assignment as per requirements of s.196(3) and 196(4). Therefore the notice was defective and this becomes an equitable assignment meaning the claimant has no right to bring a claim in their own name.

I of course have the relevant case law thanks to R0b who gave me a wonderful explanation on the intricacies of notices.

Can anyone think of anything I've missed or might need to be aware of when I go?

Thanks

MC

[Amethyst]

That sounds good to me. Have Moriarty told the court they will be attending ( or not ?)

and therefore cannot enforce judgement.

cannot obtain judgment / enforce the agreement

[MasterCoder]

Thanks!

They have indicated in their documents that they filed with the court that they will not be attending the hearing so I will be on my own in with the judge. Hopefully that will help me in some way.

Fingers crossed it all goes well. It would seem that I have a pretty solid case but have read some horror stories about hanging judges last couple of days

Thanks again for all your help Amethyst

[Amethyst]

The only case lost against Moriarty was when the defendant didn't attend court either. Normally the party that attends comes out on top, but don't take it for granted. Some judges are anti debtor, and some are anti pay day loan companies... your agreement only allowed for an extension ( carrying on paying £62.50 for ever more apparently ) but no allowance for further drawdowns - hence it being a FIXED SUM agreement and not RUNNING CREDIT - despite the solicitor calling it both, its simply not possible. Theres no credit limit, no total cost of credit etc.

Off subject a bit, I've been talking to someone today dealing with a complaint about an old PDL which allowed extensions ( no further drawdowns were made) and found on a £150 loan they'd repaid over £1000 as they were only paying the extortionate interest each month ... and still owed the £150.... the ombudsman ordered it all be repaid.

Just be polite, respectful and answer any questions as honestly as you can recall. If you get to the end and it's positive ask for your costs of the day ( at least ) and don't be afraid to mention Moriarty's previous/continual apathy in complying with the courts orders. If they do turn up and approach you before the hearing for a 'chat', then say you'd rather keep it to in the court room in front of the judge.

[MasterCoder]

So I'll be heading off to court in around an hour, ready to get this finally over with either way.

Thanks again Amethyst for your help. Thanks to everyone in fact.

Wish me luck. I'll inform you of the result when I leave.

[Amethyst]

Best wishes for today Mastercoder. Just stay calm and you will be fine xxxx

[Amethyst]

Hope things are going / have gone ok xx

[GBExile]

Hope things are going / have gone ok xx

Mastercoder is a tease

[MasterCoder]

I WON!!!

Judge dismissed their claim in about 20 minutes.

I will admit I thought it was going wrong, very wrong but it seems like the Judge may have actually been steering me a little so I'll let him off.

Essentially, the DJ wasn't too fussed about the contract or their WS and the confusion between the fixed sum and the running credit agreement. Essentially, he wouldn't accept the argument that the addition of £50 would settle the old agreement, he said that it could create a new one for £50 but they don't have an agreement for it and therefore can't ask for the money. Still a little confused on that one but I would have to take his word for it. Thought it was going against me at this point.

The lack of a default notice was not really an issue, he asked why I needed a default notice? Which stumped me a little and I was looking at the legislation but couldn't really answer his question. He said that QQ could assign it without a default notice which seemed odd since I thought it had to be terminated to be sold. He then made a point about termination and that's when I realised the worm had turned and his questions were him trying to get me to say specific things

Ultimately it boiled down to:

1) If the account wasn't defaulted but was transferred to Lantern/MMF did they have proper authorisation to run a consumer credit agreement? He wasn't going to look it up, they didn't put it in their WS and they didn't send anyone to court to answer the point so therefore he would find they didn't have a licence

2) The assignment was defective, I didn't need to argue this myself because the morons actually failed to put the NoA in the document bundle so couldn't show they had sent any notice.

3) Though he stated that the original credit agreement was valid, I had paid £215 to QQ anyway and since the claim was technically for two loans and two agreements, they are obligated to get their figures right and if they aren't on hand to recalculate it then that's their problem.

So claim dismissed and he awarded me costs for a day in which i think was £70 or £80 and £15 in mileage I'm not sure on the day cost award because I was too busy feeling the simultaneous relief and smugness.

Thanks to all who helped, especially Amethyst, for the advice and support.

I will post the order when it comes through!

[GBExile]

All that worry for nothing