Phoenix Recoveries v Kotecha Jan 2011

[basa48]

Re: Phoenix Recoveries v Kotecha Jan 2011

an application under the barrel jurisdiction has been made,

Do we know approx when the application may be heard?

It really is an eagerly awaited determination.

[ncf355]

Re: Phoenix Recoveries v Kotecha Jan 2011

Aha, we await another dose of pure PT gold with due baited breath!

;-)

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

WE were invloved in a matter that was reserved to the High Court, as it involved numerous points which the High Court ought to deal with to give clarity to all concerned on those points.

There was Unfair relationship, defective default notice, breach of s78, breach of s62, 63 and most importantly s61(1) and 127(3)

The court has given its draft judgment but a application under the barrel jurisdiction has been made, so until that is dealt with the judgment remains confidential.

However, as soon as it is available you will get a copy.

[wishfullthinking]

Re: Phoenix Recoveries v Kotecha Jan 2011

what is this pending high court rulling you talk about pt

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

Sorry for my ignorance, but is the extract that you posted at the start of this thread sufficient for court?

That extract was from Lawtel

It is the case report, as there were law reporters in the Court room recording in writing the judges judgments.

Any court will have access to the case report, and a print out of the case report above will assist im sure

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2011

Sorry for my ignorance, but is the extract that you posted at the start of this thread sufficient for court?

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

pt do you know when the full judgement will be released?

the Kotecha one?

No i dont, we havent requested a copy of the judgment as it is reported on Lawtel.

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2011

pt do you know when the full judgement will be released?

Re: Phoenix Recoveries v Kotecha Jan 2011

What the recent rulings do, is put to bed the fanciful attempts to twist the act or the interpretations of it, in favour of the debtor.

The Act will protect those who need it, you only have to look at the Link Financial Case which is in the case law area, and the Kotecha ruling, and the up coming High Court ruling.

If you have suffered a wrong at the hands of the creditor, if they havent complied with their statutory obligations, then they will not get home.

The Brophy case was taking things to the extreme i think, but it proves if you can prove your case, then you can win, just look at Kotecha

I must also point out that, you cannot just rock up and say i cant remember what i was sent but this isnt it. That will never work and will just make you look like a debt avoider.

Mr Kotecha was able to say to the court, this is not what i signed and here is the reason why........................

much like the "unlawful recission" arguments, the "I cant remember" will never get you home in my opinion

Hi
What happens if the credtor suppoes an accurate document?

A section 78 breach only prevents enforcement whilst the breach is active.

Peter

Hi
This is an excellent result, bui ut must be remembered that only the ability to enforce the agrement has been overturned on appeal.
The judgment on the debt still remains to be seen and thus can be represented by the creditor after the section 78 breach has been remedied

Peter

[jumper999]

Re: Phoenix Recoveries v Kotecha Jan 2011

No probs PT thanks anyways

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

Hi PT is there any other link to the link financial case as I am not a VIP member please?

I dont know, it was a PPI which was compulsory and which rendered the agreement unenforceable.

The amount of credit was wrong as a result

[jumper999]

Re: Phoenix Recoveries v Kotecha Jan 2011

Hi PT is there any other link to the link financial case as I am not a VIP member please?

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

Although the posts could be moved, they do act as a reality check!

What the recent rulings do, is put to bed the fanciful attempts to twist the act or the interpretations of it, in favour of the debtor.

The Act will protect those who need it, you only have to look at the Link Financial Case which is in the case law area, and the Kotecha ruling, and the up coming High Court ruling.

If you have suffered a wrong at the hands of the creditor, if they havent complied with their statutory obligations, then they will not get home.

The Brophy case was taking things to the extreme i think, but it proves if you can prove your case, then you can win, just look at Kotecha

I must also point out that, you cannot just rock up and say i cant remember what i was sent but this isnt it. That will never work and will just make you look like a debt avoider.

Mr Kotecha was able to say to the court, this is not what i signed and here is the reason why........................

much like the "unlawful recission" arguments, the "I cant remember" will never get you home in my opinion

[jebedee]

Re: Phoenix Recoveries v Kotecha Jan 2010

This sounds like a good idea, but surely is it not best to start by pointing out that the Waksman rulin gis not applicable as the banks were the defendant whereas it is me and the burden of proof is on them. Then to state that in this case Phoenix v Kotecha is the over-riding judgement of appeal court as interest rates not on any of documents supplied and t&cs have different clauses from those on from of application form and DN; t&cs refer to a further document that has not been supplied.

Then follow on with further arguments about s 61, NOA, DN etc

It is the legal principle from Carey that is important, these were incorporated into the OFT guidance so would probably be useful. I believe you should keep this as simple as possible as LIP for the benefit of the DJ. From what I have read from this thread it is the fact that you have not received the T&Cs from the original agreement, or any variation and those must be supplied if the creditor wishes to enforce the agreement. Not sure I have ever seen T&Cs on a default notice. There is no guarantee of success in the SC court, but I suggest you do not over complicate matters for the DJ.

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2011

Although the posts could be moved, they do act as a reality check!