Phoenix Recoveries v Kotecha Jan 2011

[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

[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

[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?

[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!

[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?

[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.

[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"

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2011

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

[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.

[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

[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

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

No probs PT thanks anyways

[Guest]

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

[cymruambyth]

Re: Phoenix Recoveries v Kotecha Jan 2011

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