Another court case - hearing on the 24th August..HELP!

[middenmess]

Re: Another court case - hearing on the 24th August..HELP!

Bit late in the day but do you have all of your statements as they will show the date that the cards changed and the rate of interest charged and might give a clue as to where the contractual rate of interest request to be applied in the POC's comes from.

Even at this late stage I'd be sending off a comprehensive SAR to both the OC and Cohen's asking for everything and the kitchen sink.

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Good mornin all,

Anybody out there has this case law;

Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA.

I tried to find it in Bailii but its not there. Am going to try to use it in my amended defense

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Hi all,

I have now got draft version 1 of my amended defense which I attached here.

Before somebody said to me that the accounts number are showing left right & centre in here, to be honest, having looked again at all documents esp DN given by OC & then the copy of DN's sent by CL, I actually do not know which is the correct agreement. I haven't got the card nor original statements. The only thing that I got & have disclosed in court is the original DN by OC which incidentally is not the same agreement number as the POC or anything they wrote. Believe it or not, its actually the judge who noticed this difference when I showed him both.

Would really appreciate comments for this please?
Whether I have missed out something that I should put in here or maybe I shouldn't put sthg there in the 1st place.


P/S: Thanks for the case law Amethyst, I've saved a copy now. Will read it later coz gottodo research for the other one now ..

[Amethyst]

Re: Another court case - hearing on the 24th August..HELP!

5416 0340 6746 6959 - is the card number - on the credit card which was defaulted on. It identifies the account to you.

The 6000056079079652 is the application/agreement number (written in store before a card/account was allocated to you).

They do need to show the link between the two but I dont think that is going to be an almighty struggle for them.

Have you got any receipts/records of your credit card number ? On statements for the store card or credit card spend.

Look at the top of these agreements all start 60000 560 xxxxxxxx

http://i913.photobucket.com/albums/a...amsamended.jpg


Had a look about and someone else has had similar issues, they received this response to a question about it

"The account number quoted on the agreement of 6*****5 was the original account number you were supplied when you opened the account. In June 2006 a letter was sent to you advising you had been selected for an upgrade to a new Debenhams account card and a card bearing the new account number was subsequently sent to you. By activating the card you accepted the upgrade.
When upgrading an account it is not a requirement for a new application form to be completed and this has full Financial Services Authority approval. I can therefore confirm that the agreement that you have been provided with is the correct agreement for this account."

They contend that is within FSA guidelines at the time (which I'll check out next)

[Amethyst]

Re: Another court case - hearing on the 24th August..HELP!

by golly it's a minefield out there


Rigthio

OFT did an investigation into storecards and reported early 2004

one of the issues they looked at was

m. consumers may be given unsolicited upgrades with changes in credit
limits and other terms, possibly in breach of regulations.

which was raised by the treasury select committee

One of the questions put to firms was

Describe the process by which a customer store card holder's store card for
your store may be upgraded to a fully-functioning credit card.

BUT more interestingly theres this

Clearer store card conversion for consumers

GE Capital Bank agrees to clarify conversion of store cards to credit cards

09/04 15 January 2004
GE Capital Bank Ltd (GE) has changed the way it will offer to replace its store cards with a Mastercard credit card after discussion with the OFT.
GE has sent out letters to many Harrods and Debenhams cardholders saying that their store card would automatically be replaced by the Mastercard unless cardholders objected. The company later sent out letters with the new card explaining that the cardholder could continue to use the store card until the Mastercard was activated. However, this information was not prominently displayed and could easily be overlooked by the consumer. Although GE require all cards to be activated by the consumer before use, the OFT considered that the way in which the offer was presented did not alert consumers to their options with sufficient clarity.
The Consumer Credit Act 1974 prohibits the sending of a credit token to a consumer unless it has been requested in writing. GE considers that it was not contravening the law because it was not supplying a new credit token but sending a replacement card as a result of a variation to the existing store card agreement. The OFT recognises that the GE store card was similar to the credit card in some respects, including providing for cash advances. The legal position was therefore unclear.
GE has agreed to make changes to its approach. In its new mailing to Debenhams store cardholders it has made it clear that cardholders do not have to replace their store card with the credit card in which case they need take no further action, other than destroy the credit card. GE will also ensure that all the literature used in future conversions will make cardholders clearly aware of the options they have.
In addition, the OFT has challenged a standard term in the GE store card agreement that purports to give GE an unrestricted unilateral right to change the terms of the agreement. The OFT considers that this term was legally unfair (see note 1). GE has, without accepting the OFT's view, agreed to amend the challenged term to limit its applicability.
The OFT recognises that there may be advantages in replacing a store card with a credit card if the consumer chooses, especially where lower APRs are on offer. The OFT also notes that GE, in line with principles of responsible lending, has taken care to make a proper credit assessment of individual cardholders being invited to change to the credit card and that initially credit limits have remained the same. GE has also responded positively in discussion with OFT about ways of making the choices available to cardholders clearer. In the circumstances the OFT is taking no further enforcement action at this time.
John Vickers, OFT Chairman, said:
'GE Capital Bank has agreed to take practical steps so that consumers will have clearer information about their options.'
NOTES
1. The Unfair Terms in Consumer Contracts Regulations (UTCCRs) came into force in 1999 (superseding the UTCCRs 1994) and apply to standard contract terms used with consumers in contracts made after 1 July 1995. The UTCCRs protect consumers against unfair standard terms in contracts they make with traders.
The OFT, together with certain other bodies, can take legal action to prevent the use of potentially unfair terms. A term is unfair if it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers. Standard terms may be drafted to protect commercial needs but must also take account of the interests and rights of consumers by going no further than is necessary to protect those legitimate commercial interests. An unfair term in a contract covered by the UTCCRs is not binding on the consumer. Ultimately, only a court can decide whether a term is unfair.
2. Section 51 of the Consumer Credit Act 1974 prohibits the sending of an unsoliticted credit token to consumers.
3. Part 8 to the Enterprise Act 2002 came into force on 20 June 2003, replacing the consumer provisions of the Fair Trading Act and the Stop Now Regulations. The Enterprise Act improves consumer protection by giving enforcers strengthened powers to obtain court orders against traders that breach a range of consumer legislation; controlling activities such as misleading advertising, misleading price indications, lotteries, sale of goods and services, underage sales, estate agency, misleading health claims, trade descriptions, mock auctions, timeshare, unfair terms in consumer contracts, doorstep selling, distance selling, package travel and consumer credit.

[Amethyst]

Re: Another court case - hearing on the 24th August..HELP!

Right hunny, you have read some of the other recent judgments in courts acros the country now, so you know Judges are leaning towards common sense arguments rather than letter of the technical bits of the CCA.

To screw you completely all they have to do (IMO) is;

1) Show evidence that the ref number on the agreement/application is the account which the card number (the account number for the credit card and showing on the DN and DOA) are the same account (I doubt that will cause major problems for them)

2) Show the Judge the OFT report and their undertaking to amend their ways prior to when your upgrade took place, and give copies of the 'usual' form of letter sent at that time.

Thats just my opinion, and you might want to take the risk and test it, and you might be lucky and get a spot on credit card company hating judge, or you might not. Absolutely up to you. I'm sure the more techhy CCA peeps will have different opinions but I would hate myself for not being honest with you.

[middenmess]

Re: Another court case - hearing on the 24th August..HELP!

An honest appraisal and one which could apply to any case connected with the CCA in the present ''support the Banks & bash the consumer climate'' that appears to be prevalent at the moment.

However all cases must be decided according to the relevant legal statutes and not by a Judge's personal opinions or beliefs and if any case is lost by the Judge misdirecting himself then in the majority of instances these cases should be won on appeal-----the problem being of course the cost of going to appeal if some form of pro bono representation cannot be secured.

I think that your case will rest on how well you can impress the judge with your arguments and knowledge of the CCA --including references and case law where appropriate--when explaining the non compliant default notice[s] [no date to rectify and not in the exact proscribed format] and the different details between the two copies that you received. The [very] suspect assignment and the fact that you never signed or even received a new agreement when the card was changed to a cc [OFT statements notwithstanding]

You already know that you are up against a 'tricky' opponent so preparation for any eventuality is paramount.

If you're sure of your onions and you believe the judge to have erred in law when dealing with any of the above ask him/her to note their reasons for so doing. [These explanations will be useful in any appeal should you lose.]

Your report of your recent court appearance shows that you were not overawed by the court or the judge or their legal representative and were not afraid to speak out when you heard something that you disagreed with or knew to be incorrect is important and I'm sure that if they fail to produce as the Judge ordered you'll be in with more just than a fighting chance of winning.

[ItWasn'tMe]

Re: Another court case - hearing on the 24th August..HELP!

so therefore they should still have to abide by CPR part 16 & practice direction supplement CPR part 16rule 7.3, right?


Would really appreciate some feedback on this before Tuesday. Thanks everybody.

7.3 of PD 16 is not applicable when a MCOL claim is initiated.

Please see 5.2A of PD 7E:

PRACTICE DIRECTION 7E MONEY CLAIM ONLINE - Ministry of Justice

[Amethyst]

Re: Another court case - hearing on the 24th August..HELP!

Absolutely agree with you MM.

[middenmess]

Re: Another court case - hearing on the 24th August..HELP!

Pinched this from a poster on CAG which might be helpful......


The relevant bit about the law of property act is NOT section 136 but section 196. If they have not sent you notice by recorded delivery before commencing proceedings then they have no standing before the court.

Here's something that I did earlier for someone else:-

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

136. Legal assignments of things in action.
— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

196. Regulations respecting notices.
(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).


23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.


24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

[Tools]

Re: Another court case - hearing on the 24th August..HELP!

However all cases must be decided according to the relevant legal statutes and not by a Judge's personal opinions or beliefs and if any case is lost by the Judge misdirecting himself then in the majority of instances these cases should be won on appeal

I think that your case will rest on how well you can impress the judge with your arguments and knowledge of the CCA --including references and case law where appropriate

Slightly contradictory points of view above but in the main spot on

The role of a Judge(from Wiki)

A judge, or arbiter of justice, is a lead who presides over a court of law, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is like an umpire in a game and conducts the trial impartially and in an open court. The judge hears all the witnesses and any other evidence presented by the parties of the case, assesses the credibility of the parties, and then issues a ruling on the matter at hand based on his or her interpretation of the law and his or her own personal judgement.

In such a complex case you would need to be fully comfortable with your arguments and be prepared for any defence they may give to each of your arguments. You must know each piece of caselaw you are relying on and be able to confidently explain your case to the Judge. It simply doesn't only depend on what the law is, many Laws can be interpreted and applied differently, it is up to you (or your solicitor/barrister) to convince the Judge yours is the most credible.

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Hi all,

My amended defence draft version 3 below. Any feedback is greatly appreciated.

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Bump... can somebody cast another sets of eyes on my amended defense please? I think I've covered all basis and get all my points across but would very much appreciate for comments/feedback on what I've written on there..

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Hi all,

I got a question to ask. Although I didn't receive a cancellation/termination letter, it was stated in the WS that the agreement was terminated. Does a statement in the WS that the account was cancelled has any weighting in regards to the Claimant "entitlement"? I have put something in Para 23 in my amended defense above but I just want to check with the experts.

[middenmess]

Re: Another court case - hearing on the 24th August..HELP!

IMO
Unless you have absolute proof with evidence then stating 'forged document' might perhaps be better stated as 'a possibly forged document'

Have you accepted their unlawful repudiation of the contract?

If not the Judge might want to know why.

Is there a date associated with the termination in the w/s?