Brandon v Amex - date of appeal hearing + detail?

[MIKE770]

Re: Brandon v Amex - date of appeal hearing + detail?

Had a set aside request in court yesterday, got no where fast, but a 2 week suspension as I wanted figure quoted to be correct of alledged debt, when asked if set aside (cost to me could be great, told by judge), poss reasons I pointed out DN defective as a Bank Holiday etc which ineffect only gave me about 9-10 days, my comment was ignored, nearly every question/argumenmt was side tracked or walked over, even a solicitor who told me as I had originally admiited the debt all will be based on that, also DN question to him (outside of court) he said I would not know about that, full of apologies in court and outside as figures I had given them were 99% accurate they only dispute one payment, it seemed to me the Banks can apologise to me & the court and that is good enough, I pointed out to solicitor I was not happy with the response also CCJ original quoted as having been obtained is just another Banks do make Mistakes (judge quote) as they do not always get CCJ info from courts. I felt bamboozoled by the solicitor outside of court, even a usher noticed I was uncomfortable and said if any question after hearing just ask her, the solicitor told me after that I should of accepted the figure & 80.00 hearing cost the Bank offered and no doubt the next 10 minute hearing I will have to pay for.

Back in court Thursday, so I hope to use Brandon case to get that set aside as per faulty DN, also bring to the attention of the court the Banks refusal to stick to 40 day Limit for SAR I am still awaiting even after ICO contacted them, as I would like extra ammo if defective for a 1997 CCA, (I still make the CCJ payments before somebody gets the wrong idea ) they treated me badly all the way through, also if the package arrives when they say it is 1 day after last 10 minute hearing Thursday.

So I have another defence statement to try an resurrect one of the original reasons for set aside i.e. faulty DN, which DJ refused to accept saying another case could cost me a lot of money, in answer to her question !!has anybody set aside case points I could use -would be very helpful? advice urgently needed and would be greatly appreciated.:beagle::beagle:

Re: Brandon v Amex - date of appeal hearing + detail?

Sorry didnt answer your question in full.
When the case went to court the section was not active. It has been applied now, but the court has not decided if this is sufficiant for the creditor to enforce.

What it has decided is that the point is arguable and that was all that is required to deny summary judgemnt.
Peter

[leclerc]

Re: Brandon v Amex - date of appeal hearing + detail?

http://www.oft.gov.uk/about-the-oft/...ers/legal/cca/

This is from the OFT re the Consumer Credit Directive

Re: Brandon v Amex - date of appeal hearing + detail?

Hi
Section 98(a) was introduced by the EU Directive and amends section 98 of the act. It came into force in Feb of this year (2011).
The section is retrospective this means that if a creditor wishes to use a contractual termination clause he will have to give notice and a reason for doing so as the regulation. The EU directive is available on Balii in full.
Peter

[gonewiththewind]

Re: Brandon v Amex - date of appeal hearing + detail?

Dear PB,

When did section 98a become effective? Does it apply to new and old agreements? Why did it not apply in Brandon v Amex?

Thanks

Re: Brandon v Amex - date of appeal hearing + detail?

HI
The second most important aspect of this judgement is the issue of the contractual termination clause.
It would have nice to have the question of whether one of these can be used to terminate an agreement within the default period, but again this has not been clarified.
The judge merely stating that the summary judgement was not safe because the issue of introducing the argument was too late, he didn’t say that it could not be done.
Fortunately this will no longer be an issue because of the now active section 98(a) and its mandatory 2 month period before termination.
Incidentally it seems that Amex subsequently terminated the account using the new clause, this confirms that it is retrospective, may be useful to remember.
Peter

Re: Brandon v Amex - date of appeal hearing + detail?

HI
It is all about taking a pragmatic view. Pointless reading things into what is said that are not there. Personally, as I have said many times I am of the opinion that there is no place in section 87 for prejudice.
I think that if there is insufficient time given to remedy then the DN should not be compliant.
Unfortunately this is not the courts view.
The upside is that this judgement shows that there is no automatic assumption that the debtor is not prejudiced by the fact that proceedings have not commenced during the period. In other word the debtor may be prejudiced even though the court action takes place months after the stated deadline on the notice.
So the debtor can argue, Yes I was prejudiced because, XYZ. Not as good a result as being able to say that prejudice is not a factor at all, but better than nothing and it means that creditors will not be able to get a summary judgment on these grounds in the future.
Peter

[Gorang]

Re: Brandon v Amex - date of appeal hearing + detail?

Thanks M1

I miss read this bit the first time round

my inclination, in broad agreement with Mr. Philpott's submissions, would be to conclude that ss. 76 and 98 did not apply to the agreement – but, as already indicated, I do not think it was right for this issue to be determined summarily here.

I was thinking that the judge only disallowed the arguments because they were not brought up until the appeal, but that is NOT the case

Thanks as that defo changes things for me

[banker_rhymes_with]

Re: Brandon v Amex - date of appeal hearing + detail?

This Forum is riddled with Trolls.

Goodbye.

Cheers,
BRW

[mystery1]

Re: Brandon v Amex - date of appeal hearing + detail?

"Thirdly, if, as a matter of construction, the Default Notice has not or may not have allowed the minimum statutory period for Mr. Brandon to remedy the breach, then it is (at least) realistically arguable that the defect cannot be overlooked as de minimis."

This was looked at in terms of Summary Judgement and that is why" it is (at least) realistically arguable" is there. It would take some serious front for any firm to go to court with a dodgy default notice in light of this judgement. You also have to bear in mind that it is the statute which gives a prescribed term and does not have a caveat attached to it.

The court in Brandon has strongly hinted, if not stated, that statute is there to be followed even if it makes those who have to enforce it unhappy.

M1
------------------------------- merged -------------------------------

Also after reading the judgement I couldn't help getting the feeling that if Amex had brought up s76 (I think it was 76) and s98 in the first hearing even if they had just referenced it then this could of been a different story all together

It will be recollected that if the notice requirements of these sections were applicable then it was plainly arguable that Amex had not complied with them so that the contractual termination route was itself closed; in any event, a conclusion either way as to the applicability of these sections of the Act could have obvious ramifications for standard credit card agreements. While there cannot be one rule for those legally represented and another for litigants in person, I confess to concern as to the evolution of the argument at the appeal stage in the circumstances of this case. Although this issue was realistically arguable on both sides, as it involves a point of law I am far from saying that it was incapable of summary disposal – had the procedural groundwork been laid. But here that had not been done and I do not think it acceptable – in proceedings claiming summary judgment - for the argument as to contractual termination to have emerged in the manner and at the stage of proceedings when it did. For completeness, although (given the view I take of the matter) it is unnecessary to reach any final decision on the point (and I do not do so), my inclination, in broad agreement with Mr. Philpott's submissions, would be to conclude that ss. 76 and 98 did not apply to the agreement – but, as already indicated, I do not think it was right for this issue to be determined summarily here.

M1

[Gorang]

Re: Brandon v Amex - date of appeal hearing + detail?

Yes I think you are right peter

Care will need to be taken i think

Also after reading the judgement I couldn't help getting the feeling that if Amex had brought up s76 (I think it was 76) and s98 in the first hearing even if they had just referenced it then this could of been a different story all together

So On That Aspect A Creditor Can Bring A Claim On A Defective Default Notice, Withdraw The Claim When The Defective Default Notice Is Raised EVEN AFTER A DEFENCE HAS BEEN EXCHANGED,
And Then

Issue A Compliant Default Notice And Bring A Fresh Claim On The Back Of A Compliant Default Notice

So Nothing Has Changed??????

Keith
This is where the CPR comes in, if they go remedy the action the try to claim again then the defendant can MAKE them seek permission from the judge for the case to be allowed,

and the defendant can agrue that they should of MADE SURE that the processes were done right the 1st time BEFORE they claimed the 1st time,

and as they didn't then they abused the process and wasted courts time so therefor they should not be allowed to waste any more courts time

Re: Brandon v Amex - date of appeal hearing + detail?

Well, there would be a number of issues to consider in that case:


Not all of them, by any means, but the banks and DCAs can't now hide behind weasel words such as "no prejudice was caused", or the errors in the pooch screw of a Notice were just de minimnis.

Cheers,
BRW

HI
I think care has to be taken over what actually happened and was said here.

"Thirdly, if, as a matter of construction, the Default Notice has not or may not have allowed the minimum statutory period for Mr. Brandon to remedy the breach, then it is (at least) realistically arguable that the defect cannot be overlooked as de minimis. To my mind, this conclusion applies both to the failure to allow a minimum 14 day period and to the absence of prejudice flowing from the defect in the Default Notice. Insofar as DJ Gisby and HHJ Denyer thought otherwise, I am, with respect, unable to agree"
The judge did not say that prejudice was not a factor in deciding if the 14 day period had to be adhered to.
He said that the absense of prejudice caused by the failure could be argued. In other words the court would have to decide if it was, or was not a de minimus breach.
This in fact re enforces the conclusion that prejudice can be a factor.
What it says is that, in this case the prejudice caused is arguable and therefore should not have been the subject of a summary judgement.
What this means is that courts will have to think about each case as regards the prejudice caused in future, it does not mean that creditors cannot use the argument to support enforcement after a DN with insufficient time to remedy is served.
Peter

Re: Brandon v Amex - date of appeal hearing + detail?

Hi

"Thirdly, if, as a matter of construction, the Default Notice has not or may not have allowed the minimum statutory period for Mr. Brandon to remedy the breach, then it is (at least) realistically arguable that the defect cannot be overlooked as de minimis. To my mind, this conclusion applies both to the failure to allow a minimum 14 day period and to the absence of prejudice flowing from the defect in the Default Notice. Insofar as DJ Gisby and HHJ Denyer thought otherwise, I am, with respect, unable to agree"

Well well

Looks like the game is afoot again for all those challengeing agreements under insufficiant time to remedy.

Peter

[banker_rhymes_with]

Re: Brandon v Amex - date of appeal hearing + detail?

1234

[GuidoT]

Re: Brandon v Amex - date of appeal hearing + detail?

I am curious regarding the legal costs of the matter, does anyone know how this panned out.

I am just curious.