Advice needed for an upcoming trial

[skilganon]

Hi All,

i recently went to visit a friend i havent seen in a while, he told me about a trial due in early june with no date set as yet but a WS needs to be filed by the end of the month so i offered to try and help.

just asking some of you more experienced people out there if you would cast your eyes over the documents i will attach to see what you think ?

this is for a sum exceeding 10k so is heading for fast track, and is being chased by a familiar DCA who have bought the 'debt'

any thoughts on the enforceabilty, the dodgy N of A, and also the non compliant default notice would be very much appreciated

[skilganon]

Re: Advice needed for an upcoming trial

sorry guys i need to bump this up

[mystery1]

Re: Advice needed for an upcoming trial

Are they suing for £13480.85 ? Was any payment mad after the default notice ? Does she have the default notice envelope ? What was the credit limit ?

M1

[skilganon]

Re: Advice needed for an upcoming trial

thank you M1,

i will endeavour to have your questions answered as soon as possible

[nemesis45]

Re: Advice needed for an upcoming trial

Is that application form the only document supposedly making up an agreement.
If so it's very thin on T's & C's if this is referred to as a " reconstituted " agreement it must have all the T's and C's at inception and closure
of the account.
Also any documents mentioned in the T's & C's e.g. a booklet of terms sent out when the card was issued,
Any amendments made to the T's & C's made during the life of the agreement.

To my mind what you have posted is not compliant.

nem

[mystery1]

Re: Advice needed for an upcoming trial

thank you M1,

i will endeavour to have your questions answered as soon as possible

When i ask about the figure, accuracy is key

M1

[skilganon]

Re: Advice needed for an upcoming trial

thanks M1 and nem,

appreciate having you two guys around:thumb:

first of all to answer M1:

13480.85 yes plus court fees etc

yes 4 payments of £10 were made after an agreement over the phone to stop the constant harassment that were making the defendant ill, the defendant stopped these payments after 4 months.

no she does not have the default notice envelope

credit limit £14500

@ Nem, yes that is all that was sent as an agreement, i agree with you it is not compliant with the CCA. this is not apparently a reconstituted agreement but 'the' agreement or a copy of.
i also noticed the default notice refers to clauses 1 and 8 where are they? these clauses ?

this has been to a hearing and the judge unfortunately was rather biased by what i have been told, the defendant pointed out that the agreement was not compliant but the judge overruled that it was ok as per high court ruling .

the defendant asked which high court ruling he was referring too and the judges reply was

" its not for me to tell you that is not my job ":jaw:

[mystery1]

Re: Advice needed for an upcoming trial

Well the question is, what was the ACTUAL debt at the time of assignment and how did it go from 13480.85 at default notice time down to 13470.85 at assignment time and back up to 13480.85 at claim time ?

[assignemt] W_F_Harrison_&_Co_Ltd_v_Burke_and_another_-_.pdf

M1

[skilganon]

Re: Advice needed for an upcoming trial

thats a fair point M1 i will ask the question.

[skilganon]

Re: Advice needed for an upcoming trial

Hi M1 and Nem,

right to get to the facts:

sum claimed: £13470.85
stat interest £ 1818.75
sols costs £100.00
court fees £500

sums claimed £15939.60

default notice shows: £ 13480.85
N of A shows: £ 13470.85

4 payments of £10 were made to the DCA after assignment apparently but were then claimed back through DD clawback ??
i have some more info but dont want to confuse the issue

[mystery1]

Re: Advice needed for an upcoming trial

Reading the agreement i find myself asking, who is the creditor and what is their address ?

M1

[nemesis45]

Re: Advice needed for an upcoming trial

I can see it's a Virgin Credit Card but no address, also a very small MBNA logo but that is all.
Therefore the reconstituted agreement fails to comply.

nem

[basa48]

Re: Advice needed for an upcoming trial

Is that application form the only document supposedly making up an agreement.
If so it's very thin on T's & C's if this is referred to as a " reconstituted " agreement it must have all the T's and C's at inception and closure
of the account.
Also any documents mentioned in the T's & C's e.g. a booklet of terms sent out when the card was issued,
Any amendments made to the T's & C's made during the life of the agreement.

To my mind what you have posted is not compliant.

nem

Not so sure I would agree with non compliance. Certainly the second page of the agreement seems to contain a term for the credit limit, payment terms and interest rate. This together with a signature on the first page IMO is all that would be required.

The DN and NoA seem good to me as well.:tinysmile_cry_t:

[mystery1]

Re: Advice needed for an upcoming trial

I can see it's a Virgin Credit Card but no address, also a very small MBNA logo but that is all.
Therefore the reconstituted agreement fails to comply.

nem

There needs to be 2 parties to make an agreement. Unless there is info that's been hidden then there is no agreement. Who is agreeing to contract with the debtor ? Any contract, not just cca, needs to say who the contracting parties are. CCA probably has rules on this too. Even in Carey it was barely discussed because it is such a fundamentally basic part of any contract.

M1

[mystery1]

Re: Advice needed for an upcoming trial

Not so sure I would agree with non compliance. Certainly the second page of the agreement seems to contain a term for the credit limit, payment terms and interest rate. This together with a signature on the first page IMO is all that would be required.

The DN and NoA seem good to me as well.:tinysmile_cry_t:

There are issues. The default notice is faulty if the agreement is whole as it mentions para 8 which doesn't exist in the documents provided or the agreement is incomplete.

The differing amounts on DN and NOA need investigation as the claimant may not be the correct owner of the account if the assignment, legally, did not happen.

M1