Over the past few weeks i have seen a number of cases which suggest that people are overlooking the basics with Consumer Credit Claims, instead focusing on bizarre, wild and fanciful arguments that lack any real merit and arguably fail before the Court.
For example, on one case the argument was that the creditor hadnt provided the agreement merely an application form had been disclosed. Sadly this overlooks s127(3) Consumer Credit Act 1974 which confirms application or agreement really is irrelevant, what matters is that the “document” contains the prescribed terms and is signed by the debtor.
Another example is the argument that the creditor hasnt provided the signed agreement. Sadly case law shows that the burden is on the debtor to raise the question of whether there was a signed agreement. It is not sufficient to say “they haven’t got the signed agreement” instead what is required is that the debtor raises an allegation as to what he or she did or did not sign.
Other points that have cropped up involve arguments over default notices, it seems many take the easy way out and say that they never received the notice. The problem with this is, that often the lenders make errors in their notices, so saying i never received the notice even if true is a dangerous argument to run. Its far better to obtain disclosure of the Default notice, then analyse it for errors, there are often errors in Defaults, so its far better to be able to argue i never received the Default but even if i did the notice the Claimant relies on is defective. At least this would remove the possibility of the Judge making a finding that you would have received the default notice because the bank is a reputable bank and wouldnt have failed to send such a notice.
Its important to always bear in mind that claims of this type will always be frowned upon by the Courts, especially if the image that gets portrayed by the Claimants lawyers is that the Defendant is a filthy debt avoider, so its important not to fuel the fire but instead take care to review the Claimants case, find the faults, and if you need to then get legal advice as often the faults are not glaringly obvious to the untrained eye.
It is often the simple points that win the day, many cases that i have won have been won not on lengthy complex points, rather its been the simple points that are often overlooked that win the day.
As the saying goes, fail to prepare, prepare to fail!!