Phoenix Recoveries v Kotecha Jan 2011

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

Thank you for your comments.
As for s 61, my signature is there and although it is only a squiggle for the OC a DJ at my local court informed me that it was industry practice for a cross or date stamp to be suffucient!

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2010

[FONT='Arial','sans-serif'].This is part of my defence[FONT='Arial','sans-serif'] [/font][/font]
[FONT='Arial','sans-serif'][FONT='Arial','sans-serif'][/font][/font]
[FONT='Arial','sans-serif'][FONT='Arial','sans-serif']I wrote to the Claimant placing the account in dispute as I considered that their documentation did not comply with the requirements of The Consumer Credit Act 1974 in that it did not contain any prescribed terms and also that they had failed to supply any terms and conditions relevant to the agreement.

. On the Claimant supplied a random copy of the terms and conditions with a hand written number on the top These terms and conditions did not appear to have any connection to the application form that they had sent previously; indeed they were not relevant to the time of the application [/font][/font]
[FONT='Arial','sans-serif'] Firstly I refer to the Short Application Form submitted by the Claimant and on which they are relying as evidence for bringing this claim.

It is denied that this is a valid executed credit agreement within the definition contained within the Consumer Credit Act 1974 and that it is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

[/font][FONT='Arial','sans-serif']. S60(1) of the Consumer Credit Act 1974 states that an agreement must contain certain Prescribed terms under regulations made by the Secretary of State and referred to as the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the agreement and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

[/font][FONT='Arial','sans-serif']The Claimant has not produced any Terms and Conditions as part of the copy of the alleged agreement produced under the order of the court and I have already demonstrated in Paragraph 5 above that those supplied in response to my request under S78 of the Consumer Credit Act 1974 are irrelevant as they cannot pertain to this account at the time the application for a credit card was made.
[/font][FONT='Arial','sans-serif']
[/font][FONT='Arial','sans-serif']. It is submitted the Short Application Form supplied by the Claimant cannot be regarded as a legally enforceable agreement as it falls foul of the Consumer Credit Act 1974 in that no prescribed terms are contained within this document.

I note from Paragraph 17 of the Witness Statement submitted by the Claimant that they are under the misapprehension that the section of the statute referring to ‘prescribed terms’ does not apply to an agreement for ‘a rolling credit facility’. At trial I will refer to S60 of the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) to demonstrate conclusively that that there is no exception for their omission. Furthermore these terms must be contained within the agreement and cannot be contained within a separate document. I will refer to the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299[11] which provides the precedent for this opinion.[/font]

Your argument is a touch loose, dont forget they will be sending counsel, so your legal argument needs to be well reasoned and presented clearly.id suggest section 61 is very important too in showing the requirements.

Also the Kotecha judgment is a key point to keep up your-sleeve, it goes in hand with the Judgment of HHJ Worster in Phoenix recoveries vs Dr "C" who was a client of ours.

Both are credit card judgments and both are very very relevant

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

This is part of my defence

I wrote to the Claimant placing the account in dispute as I considered that their documentation did not comply with the requirements of The Consumer Credit Act 1974 in that it did not contain any prescribed terms and also that they had failed to supply any terms and conditions relevant to the agreement.

. On the Claimant supplied a random copy of the terms and conditions with a hand written number on the top These terms and conditions did not appear to have any connection to the application form that they had sent previously; indeed they were not relevant to the time of the application
Firstly I refer to the Short Application Form submitted by the Claimant and on which they are relying as evidence for bringing this claim.

It is denied that this is a valid executed credit agreement within the definition contained within the Consumer Credit Act 1974 and that it is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

]. S60(1) of the Consumer Credit Act 1974 states that an agreement must contain certain Prescribed terms under regulations made by the Secretary of State and referred to as the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

]. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the agreement and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

The Claimant has not produced any Terms and Conditions as part of the copy of the alleged agreement produced under the order of the court and I have already demonstrated in Paragraph 5 above that those supplied in response to my request under S78 of the Consumer Credit Act 1974 are irrelevant as they cannot pertain to this account at the time the application for a credit card was made.

. It is submitted the Short Application Form supplied by the Claimant cannot be regarded as a legally enforceable agreement as it falls foul of the Consumer Credit Act 1974 in that no prescribed terms are contained within this document.

I note from Paragraph 17 of the Witness Statement submitted by the Claimant that they are under the misapprehension that the section of the statute referring to ‘prescribed terms’ does not apply to an agreement for ‘a rolling credit facility’. At trial I will refer to S60 of the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) to demonstrate conclusively that that there is no exception for their omission. Furthermore these terms must be contained within the agreement and cannot be contained within a separate document. I will refer to the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299[11] which provides the precedent for this opinion.

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2010

Yes Capital One

very very interesting

This is not unusual it seems, i have had a few cases like this with the terms showing no statutory content at all.

The question is have you pleaded in your defence that there are these issues? are they mentioned in your witness statement?

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

Yes Capital One

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2010

and this is a credit card?

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

There are no interest rates on any of the paperwork!

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2010

are there interest rates ?

are they correct?

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

Hi pt, it is a short application form with a short piece st the bottom stating that it is a credit card account agreement. It asks for me to read 'the use of information overleaf (s23 of the agreement) which sets out how your information will be used. S23 on the t&cs supplied is Governing Law. This agreement is governed by English Law.

The Dn refers to s3 for failing to adhere to agreement; in these t&cs it relates to additional card holder.
There are no aprs on any of the 'documents', there are no amounts listed for the t&cs.

In the t&cs it mentions Key Financial Information, Interest Rate, Monthly Payments all forming part of the terms of the agreement. I DO NOT HAVE THEM and they are not in the trial bundle submitted by them.

Also the reference number written on the top relates to the DCAs own records not that of the agreement.

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2010

The only relationship between the documents is a hand written number on the t&cs. The clauses do not match up to those on the DN either.

but are they truly separate or are the suggested to be the rear of the document?

Each case turns on its own facts, so its really a case of attention to the detail and finding the faults, so that there can be no argument that the terms are not correct

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

The only relationship between the documents is a hand written number on the t&cs. The clauses do not match up to those on the DN either.

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2010

Hi, am I being too simplistic, but if I am going to SC court with a short application form and unrelated t&cs, none of which show an APR this judgement means that the 'CCA' cannot be enforced?
And following on, would I need a new WS or can I just submit a skellie with this as an authority?
Thank you

the key is the comment of the unrelated terms and conditions

why are they unrelated?

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2010

Hi, am I being too simplistic, but if I am going to SC court with a short application form and unrelated t&cs, none of which show an APR this judgement means that the 'CCA' cannot be enforced?
And following on, would I need a new WS or can I just submit a skellie with this as an authority?
Thank you

[Algee]

Re: Phoenix Recoveries v Kotecha Jan 2010

Paul

Does "Under s.78(1), a creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made." mean that it is not necessary to have the statements from inception of the account? Or does the point of wrong terms still have to be proved by the Defendant?

Alan

[ncf355]

Re: Phoenix Recoveries v Kotecha Jan 2010

Oh, now THIS I like!

Good work there PT, lets hope many use this

We can but hope it will put an end to the crapola some DCA's/OC's like to spout, but we'll see