Phoenix Recoveries v Kotecha Jan 2011

[ncf355]

Re: Phoenix Recoveries v Kotecha Jan 2010

Just so's you are aware there is a thread on Brophy Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to time.. - Legal Beagles Consumer Forum, might be wise to keep Kotecha and Brophy seperate discussions.

(on Brophy I thought this argument was kicked out months ago by Slater v Egg so quite suprised he pressed ahead with it)


p.s. shall i move last few posts over?

Sounds like a plan Ame, keep the thread "clean"

[basa48]

Re: Phoenix Recoveries v Kotecha Jan 2010

This aint looking good and kills off the sec 59 argument.

I never did fancy that s59 argument. It was put to me a while ago and I mulled it around quite a bit. But the section wording is too vague and it was never tested in court (until now), so I abandoned it. Glad I did.

Regarding the rest of the judgement. To my mind it is a very reasonable determination and not something I would have gone to court with. But the opening paragraph just shows exactly where this judge's loyalties lie (and it ain't in interpreting the law impartially).

If it were a much stronger argument that first para would surely warrant a further hearing, it being an admission of total bias.

[Amethyst]

Re: Phoenix Recoveries v Kotecha Jan 2010

Just so's you are aware there is a thread on Brophy Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to time.. - Legal Beagles Consumer Forum, might be wise to keep Kotecha and Brophy seperate discussions.

(on Brophy I thought this argument was kicked out months ago by Slater v Egg so quite suprised he pressed ahead with it)


p.s. shall i move last few posts over?

[diddydicky]

Re: Phoenix Recoveries v Kotecha Jan 2010

as i see that ruling- the mainstay of the appeal was that the creditor had not explained in the agreement the method by which they would "decide on the credit limit from time to time"

Is is really any of the borrowers business as to HOW the creditor comes to a decision as to what the borrowers credit limit will be-

if the creditor decides to increase or decrease the limit- why should the debtor be interested in how the creditor came to that decision?

doesn't seem to me like a very good argument for an appeal

if i am missing the point there- please correct me!

[ncf355]

Re: Phoenix Recoveries v Kotecha Jan 2010

This aint looking good and kills off the sec 59 argument.


http://www.bailii.org/ew/cases/EWCA/Civ/2011/67.html

This, in a written judgment??!!!

"This is an appeal by Mr. Patrick Brophy against the order of Flaux J. dismissing his appeal against the order of His Honour Judge Million giving judgment in favour of HSBC Bank Plc for the amount due in respect of a credit card debt. It represents another attempt by the holder of a credit card to invoke the terms of the Consumer Credit Act 1974 ("the Act") in order to avoid paying debts incurred to the card issuer. "


Or to put it another way

It represents another attempt by the consumer to invoke law created to protect his interests against unscrupulous lenders


How does a judge, sitting in COA get away with using such emotive language in what is supposed to be a judgment based on legislation and facts?

[Ihaterbs]

Re: Phoenix Recoveries v Kotecha Jan 2010

This aint looking good and kills off the sec 59 argument.


http://www.bailii.org/ew/cases/EWCA/Civ/2011/67.html

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

If you choose to defend this in the SC court then you might consider taking the judge through the relevant paragraphs of the Carey judgment followed by C of A decision in Kotecha and finally the OFT guidance on information requests made under S77 and S78 CCA. Particulary para 2.21 of the guidance. Take you time and be well prepared for the hearing, make notes, you are attempting to "sell" your case to the DJ, so smile and confirm he understands your points before moving on. If possible ask why the other side believe the T&Cs are the correct ones. Above all do not rush your case and stay calm.

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

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2010

Have you tried PT's firm Watsons Solicitors | Welcome ?

PS website looks knackered at the moment.

M1

cant you tell, IT isnt our strong point lol

Actually we were waiting til the recent case results come out before we upgraded it, but the webby is being sorted

and btwm we did a case in plymouth, had one in blackpool, another in hastings, and one in the north east.

Distance is no problem

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

Thanks Mystery but local barrister said that as it is SC we would not be able to claim all the costs invloved; the distance from pt's firm would add considerably to these costs.

[mystery1]

Re: Phoenix Recoveries v Kotecha Jan 2010

Have you tried PT's firm Watsons Solicitors | Welcome ?

PS website looks knackered at the moment.

M1

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

BAsed on my experiences with Wescot and the instance with a DJ I'd go with what PT says lay your case out for a local legal firm and see if the'll carry out a risk assessment to see if you can qualify for a 'no win no fee' deal.

LIP is an upill struggle now as the other side will undoubtedly employ legal council and as good as you think you understand the legal concepts it'll be a challenge

I haven't been able to find a local no win no fee and time is running out. The local firm I spoke to thought I had a ggod grasp of the legalities and didn't think it would be financially viable; this was after court was provisionally booked. It looks like it is battle no3.

[frisp]

Re: Phoenix Recoveries v Kotecha Jan 2010

BAsed on my experiences with Wescot and the instance with a DJ I'd go with what PT says lay your case out for a local legal firm and see if the'll carry out a risk assessment to see if you can qualify for a 'no win no fee' deal.

LIP is an upill struggle now as the other side will undoubtedly employ legal council and as good as you think you understand the legal concepts it'll be a challenge

[jebedee]

Re: Phoenix Recoveries v Kotecha Jan 2010

If you choose to defend this in the SC court then you might consider taking the judge through the relevant paragraphs of the Carey judgment followed by C of A decision in Kotecha and finally the OFT guidance on information requests made under S77 and S78 CCA. Particulary para 2.21 of the guidance. Take you time and be well prepared for the hearing, make notes, you are attempting to "sell" your case to the DJ, so smile and confirm he understands your points before moving on. If possible ask why the other side believe the T&Cs are the correct ones. Above all do not rush your case and stay calm.

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

Thanks for replying, I have started a thread in VIP re their attempt to collect s69 interest; instead of taking over this topic I will post more information there.
Re previous defeats, I feel that I didn't have much chance because of the balance of probabilities rule, I could probably could have presented the case better, however I did cover all the points with case law etc. The DJ did not listen or note everything that I said.
Re a settlement I started before Kotecha and they haven't replied since.

My other thread http://www.legalbeagles.info/forums/...ad.php?t=26452

[Amethyst]

Re: Phoenix Recoveries v Kotecha Jan 2010

Urgghh doesn't sound too positive then.

On your last case, which I know you lost, was it fair that you lost or id you feel trampled on and sidelined by the other side ? If your case is strong and with the backup of Kotecha, even if the judge decides the terms are linked to the front page of the agreement, those terms still need to be the correct ones from inception and you need to get your evidence sorted to show they couldnt possibly have been - have you already argued that in your defence/witness statements etc ?

I don't know if we have the jugment transcript available yet as that should have much more detail in.

In your negotiations for settlement have you bought up Kotecha at all ?

Have you posted up their witness statements and the relevant documents anywhere, as more eyes may help get your arguments straight.

In your defence you mention some prescribe terms that are missing which the other side say in their WS don't need to be there?

Obviously keep trying to sort out rep if you want to go that way but also be absolutely ready to go in yourself as LIP while negotiating on a WP basis.