Judgment set aside due to defective service.

One case which slipped through the net was a case involving a judgment from 2014. The judgment had been entered because the Claimant issued a claim on an address which the Defendant owned, but crucially didnt live at and hadnt given as their address for service.

An application was made promptly, although our main thrust was under CPR 13.2 we wanted to be sure that we had the alternative argument under 13.3 and thus had to act promptly.

CPR rule 6.9(2) requires proceedings to be served on the Defendants last known residence. The Defendant had never resided at the address used to issue the Claim, nor had they ever given this address for the correspondence. The Claimant Marlin Limited had issued  the Claim on the wrong address.

Worst still the pleadings were woeful, we couldnt work out what the Claim was about, we thought it was an account for X but it turned out to be an account for Y, Y being an overdraft.

The Claimant tried to resist our arguments about the fact that an overdraft was regulated by the CCA 1974, fortunately when the claim form arrived in our possession it was clear that no default notice had been pleaded and with the Doyle v PRA Group case fresh off the press it became clear that this claim was in big trouble, if the Default Judgment was set aside then the Claimant would get spanked in Court.

It seems the Claimant realised that their circa £15k CCJ was disappearing around the U bend, and they became a little more agreeable to setting aside the Judgment.

It shows that even if the Judgment is old, it can in certain circumstances be challenged and set aside.

The debt in this case is now irrecoverable.

I would add that had the creditor pursued the case, and had we managed to set aside the Judgment, then we would have pursued an action under s140A Consumer Credit Act 1974 for the return of all charges levied on the customers account, irrespective whether the creditor had actually received those funds. Surprisingly s140 does open the door for this type of challenge, and i have succeeded with this argument before in a case with Hoist Portfolio

Advertisements

1st Credit last again

Yesterday we faced 1st Credit Finance limited in Court. Their Claim failed to get out of the starting blocks in reality.

The case involved a debt which had originated from the Defendants company, the company had a bank account and loan,which were supported by a personal guarantee (PG). There was also PPI on the loan which covered the Defendant in a personal capacity.

The company was placed into administration, and administrators were appointed to deal with the orderly shutting down of the company.

The debt was then allegedly sold to the Claimant, and a claim was issued to recover monies under the PG . The Claimant disclosed statements of account which suggested that the debt had already been paid. Now its important to point out that this was not just a simple charge off which is performed when the creditor sells the account, this was in fact a number of payments shown as coming into the account.

The problem which the Defendant had was simply that as the administrators dealt with the company , the Defendant did not have any involvement and therefore couldn’t know whether the administrators had paid the monies in, or whether the PPI had paid out. So the Claimant was put on notice of this issue and asked to clarify this point, which they failed to do.

The second issue which arose out of the papers, was whether on the true construction of the deed of assignment, could it be said that the Claimant had been assigned the Defendant’s debt. The deed specified the type of accounts, being  those which had been debt collection process exhausted, and specified that here were certain conditions that had to be met for the transfer to be effective.

The third issue which arose was whether or not the notice of assignment was compliant and sufficient to give notice of the transfer of title to the debt under s136 LOPA 1925.

The notice did not specify the accounts, it did not specify the account numbers, it in fact did very little apart from referring to the router account number which never gets disclosed to the consumer in normal circumstances. The Defendants evidence was that the notice was unclear and that had it been received ( there was a dispute over its arrival) then it wouldnt have given a clear indication that this account had been assigned.

The matter came before the County Court on 11th May 2017, the Claimant had amended its pleadings, we had amended the Defence, the Claimant failed to file a reply, and in terms of witness evidence, to say it was lacking was probably the biggest understatement ever.

The evidence from the Claimant came from a solicitor not employed by the Claimant but from a separate company entirely, 1st Credit Limited. The solicitor had to accept that she had no direct knowledge of the assignment, she had to accept that she had no direct evidence from the original creditor to say what happened, or why the statements had entries showing the debt paid off, she couldn’t say whether the PPI had paid out, in fact apart from supposition and surmising she couldn’t say much at all.

On the flip side, the Defendants arguments were robust and extensive, the Defendant raised a number of propositions all of which were sound, the Claimant had it stopped and thought about it, could have sought the answers, but it didn’t, it appeared to forge on with an arrogant view that it was simply going to steam roller the Defendant. Sadly for the Claimant, the Defendant was represented and we had a good amount of experience of dealing with this issue. For example i blogged about PRA Group UK Limited whose claim failed in PRA v Brunt due to the bad assignment, and i have had a number of MKDP and Hoist cases which were defended due to no evidence of assignment.

We instructed Imogen Halstead from No5 Chambers, Imogen was excellent, she dealt with the case exactly as per the instructions and was an excellent advocate in Court.

The Judge ruled that, while he accepted there was a notice which on its face could be said to comply with the LOPA 1925, he did not accept that there was a debt that had been assigned. The Judge ruled that even with the two witness statements of the Claimants solicitor there was not enough to be satisfied that there was an account that had been assigned and the Claim failed.

The Judge dismissed the Claim and ordered the Claimant to pay a considerable sum of costs.

Claim issued on an address that the Claimant knew was wrong.

I have recently dealt with a case involving Hoist Portfolio where they issued a claim against the customer in circumstances that can only be described as downright outrageous.

So the story goes like this, consumer tells Hoist they’ve moved, Hoist write to consumer at the new address, consumer is on electoral roll, consumer registers all accounts with banks at new address. Hoist however,issue a claim against the address they knew the consumer moved from some 15 months previous.

As a result Judgment gets entered against consumer.

Fortunately the Consumer contacted us and an application to set aside was drafted promptly and lodged with the Court. The application seemed to focus Hoists minds, as the judgment was set aside by consent and the claim promptly disappeared never to be seen again.

The argument used was that the Judgment must be set aside under CPR rule 13.2 as the Claim had not been served correctly thus the time for filing the Acknowledgement of Service had not started to run, thus Judgment could not be entered.

Plus, under CPR 6, the Claimant has a duty to carry out reasonable checks to ensure that the address used for service is the correct and most recent address, it was clear that Hoist knew that the address they used was wrong, the evidence showed this clearly yet they still issued on the old address.

Cabot Caaaabooooooom

Another quick update, but not Hoist or PRA, this time its Cabot Financial UK Limited.

So Cabot via their appointed lawyers issue proceedings, the Claim is for two debts rolled into one, the pleadings are worst than useless, and whatever this “post Refrl Cr Nil” is about i dont know, still havent managed to work out that pleading, anyway, so two debts in one claim.

The first claim ends up getting discontinued as they had no documents whatsoever, and moreover nor did the original creditor, and there was clear written evidence showing this too. There was no hope of reconstituting, no hope of anything coming up at all. So long story short the first part gets abandoned.

The second part, well thats as hopeless as the first, the Claimant reconstituted the agreement, only problem is, it wasnt our clients, far from it, so what was said to be the agreement, well the interest rate was supposedly fixed for 6 months, on the statements it was materially different from the recon agreement, in fact many things were different.

It drove a coach and horses through the Judgment of the High Court in Carey v HSBC, clearly whatever this was, it wasnt an honest and accurate copy.

Anyway, fast forward, we now receive ………………………………….notice of discontinuance.

Moral to the story, get your papers in order before you issue, and perhaps get a lawyer who can see these issues before they arise in the course of legal action?

PRA Group defeated again, this time with damages awarded

I am pleased to be able to report another successful outcome from a case involving the PRA Group UK Limited.

The case in question, PRA v Gavin resulted in a ruling dismissing the Claim but crucially the Court also found the relationship was unfair as a result of over 500 harassing telephone calls made to the Defendant.

The agreement which was originally an MBNA credit agreement, was declared unenforceable by the Court as the Claimant had failed to discharge their obligations under s78(1) Consumer Credit Act 1974, there were other issues such as a breach of s61(1) Consumer Credit Act, but the Court ruled that it didnt need to look beyond the s78 issues.

So, onto the Counter-claim. Total schoolboy errors here, the Claimant carried the burden of proof per s140B(9) Consumer Credit Act, yet their evidence was so lacking and limited that they really didnt have a hope. Our clients evidence was contemporaneous , they had written down every call in a note book, they had kept letters etc.

So the outcome was the relationship was declared unfair, the claim dismissed and a substantial sum of damages to be paid by the PRA group…………oh and costs too.

Hoist Portfolio

In January 2016, the County Court heard a trial in a case involving Hoist Portfolio Holding 2 limited. The issues in the case were:-

1. The Defendants account had been assigned to Hoist but the validity of the assignment was disputed
2. The Default notice issued by Cahoot was materially defective as it failed to allow the statutory time for compliance
3. The Creditor had failed to comply with s78(1) Consumer Credit Act 1974.
4. The terms of the contract were unfair per UTCCR 1999

The Claimant made a real mess of the proceedings, indeed the trial bundle didnt arrive as a hard copy until the morning of the trial, the Claimant applied to introduce new evidence on the morning of the trial. The Claimant also changed their stance in respect of their witness, they were sending the witness, then they werent, then they were!!

Any way, we represented the Defendant on a no win no fee basis, we also secured a barrister (Mr Thomas Brennan) also on a no win no fee basis.

The case came before DDJ Campbell, who after listening to the evidence, and hearing submissions, reserved her Judgment.

The Judgment was handed down little over 10 days ago, and the Court ruled that

1. the Default notice did not comply with the requirements of s88 Consumer Credit Act 1974; and
2. The Claimant had failed to come close to complying with s78(1) Consumer Credit Act.

Accordingly the Judge dismissed the Claim and ordered the Claimant to pay the Defendants costs.

MKDP LLP yet again, they lost, they have to pay indemnity costs and their agreement declared unenforceable

Clearly MKDPs legal advisors (whoever they may be) have shown some serious consistency, consistency in so far that they havent managed to win a case against me todate.

Whats more, this theme has shown no sign of changing as today we were in Court again facing them, and again their backside took a kicking. Another Barclays credit agreement, another case where the agreement on its face confirmed no terms and conditions were present with the application form and another case where the Court dealt with the claim swiftly, ordering MKDP to pay indemnity costs too.

In this case we also took the matter forward on a no win no fee agreement, the barrister was also working on a no win no fee agreement thus the client was able to defend this case without being at risk of a huge legal bill other than his successfee which was agreed between the parties and which we kept low to keep the case affordable.

If you are being sued by MKDP then please do get in touch.