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.

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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.

MKDP LLP Lose again

On Friday we faced MKDP again in Court. On behalf of our client we instructed Mr Thomas Brennan, MKDP instructed an agent of some kind.

The issues arose out of a Barclaycard agreement which had been assigned to MKDP allegedly. I say allegedly as they couldnt provide any supporting evidence that they actually owned the debt.

There were so many problems with MKDP’s case that i dont really know where to start.

1. Their evidence was appallingly bad. Who ever advises them clearly struggles with the concept of evidence, when you make a statement you are required to state the source of your knowledge. In this case there were numerous statements that “Barclays would have done X” or “The Court can be satisfied that a default notice was sent” er well no it cant because Mr MKDP your witness doesnt tell us how you know this??????? As a result the evidence wasnt given any weight. FYI MKDP read CPR 32 and PD 32 as this tells you what must be in a statement.
2. The second problem, they had no witness in Court. Our client had raised numerous points which could only have been dealt with by live evidence. The fact they had no witness hung them out to dry.
3. The documents supplied were grossly illegible, now didnt i say this would be a big problem for creditors? http://www.bbc.co.uk/news/business-13349239 ahh yes i did.
4. The correspondence was shambolic, one of the main problems was that MKDP provided documents which purported to come from Barclays, yet Barclays were fully aware the client moved in 2011, yet if MKDP are to be believed Barclays wrote to the client at an address Barclays knew he moved from 4 years ago. Entirely unlikely, and as we have seen from Hillesden v Moore, some debt purchasers do use other parties letter heads and create fictitious people etc.
5. The Credit agreement was so obviously unenforceable, the terms and conditions that were produced by MKDP had a clear clause which said that these terms accompany the Card, plainly they werent provided to the client when he signed the application form. Of course there was a further problem, by MKDPs own evidence the application was an A4 Sheet of paper, however as i understand their argument, they sought to claim that 2 pages of A4 were in fact on the reverse of the A4 application form , as a matter of common sense, if the front is A4 the back is A4, it cannot therefore house two pages of A4

So, we turn up at Court, we go in before the Judge, its fair to say we are feeling very sorry for the opponents advocate. She had no witness, no case, no hope, in fact anyone with an ounce of knowledge of consumer credit matters would have given up and gone to the pub.

Anyway, we go before the Judge, Tom makes a submission that the easiest way to deal with this case was to look at s61(1)(a) Consumer Credit Act 1974 and the regulations which set down the prescribed terms. If the Court finds that the prescribed terms were missing when the agreement was signed then the agreement is irredeemably unenforceable. Secondly it was submitted that the documents before the Court could not satisfy s78(1) Consumer Credit Act and given these points were raised in the Defence and through correspondence, the Claimant cannot claim to be prejudiced if the Claim is dismissed as it was aware of the issues before arriving at Court, and in respect of s78 at least, it could have attempted to put those issues right by serving legible documents!!.

The Judge considered s61 Consumer Credit Act and  ruled that the prescribed terms were not in the document signed by the debtor therefore the agreement was unenforceable and the Claim was dismissed.

The Judge made an order that the agreement was irredeemably unenforceable which now means MKDP cannot record this on the clients credit file per Grace v Blackhorse.

Also despite this being a small claim the opponent was ordered to pay the costs in full, the reason was the Judge found this was such a hopeless case, so hopeless that anyone with an ounce of common sense would have seen and would have abandoned before stepping within 10 foot of a Court.

The icing on the cake however was when the Claimants representative asked what her client could have done differently, well one suggestion, they could have instructed me, but then again, i only act for consumers………