Bank of Scotland…. You’re wrong but we will write the debt of anyway……….

Another day another blog……………this time one which didnt need a County Court to decide. The case turned on a Bank of Scotland credit card. The story went something like this………………………………………..

A customer receives an invitation to apply for a credit card. Customer completes the application form and gives the bank all of their financial information. Bank takes that information and misapplies it, instead of setting aside income for Housing Benefit, the bank includes this in the customers financial info, thus over-inflating their income.

The bank on the back of this offers a credit card, which it knows plainly would be unaffordable.

The credit agreement that the customer signed up to was not signed by the bank ( we had disclosure of the original) and also did not have the necessary prescribed terms within it.

So we placed the bank on notice of the numerous errors, citing everything from irredeemable unenforceability through to irresponsible lending creating an unfair relationship.

The bank denied liability, denied everything in fact, but then in a moment of guilt maybe decided that nevertheless it would write off the whole debt, discharge the customer from their contractual obligations, and consider the matter closed.

Now ill leave it up to you to make your mind up on who was right, but id say that if someone owed me money and i thought they legally had to pay it back i wouldnt be writing off nothing, would you?

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.

An update or two

Its been a while since i have had any spare time to sit down and type up another article for the blog. I’ve literally been so busy that i haven’t had time to share some of the results  good and bad with everyone.

So, what’s been happening, well we’ve been getting notice of discontinuance from Hoist Portfolio Holding 2 Limited over and over, were up to about 12 cases in the last three weeks that have been abandoned. Long may it continue.

PRA Group UK Limited, they lost a case recently which determined that they had failed to comply with s78(1) Consumer Credit Act 1974 and had acted in a way that gave rise to an unfair relationship under s140A Consumer Credit Act 1974 and as a result their claim was dismissed, and our client awarded £3k in damages.

 

We also have an appeal on going with the PRA Group too. More details will follow when possible.

1st Credit Finance Limited, they have been on the radar a bit too. We succeeded in defending a case brought by 1st Credit, the case had a default judgment which was set aside, we then lodged a defence to the Claim. The case was finally settled with discontinuance being filed as part of an agreed settlement.

Swift Advances Plc v Daley, i can now talk about this case, it was subject to an appeal so i didn’t place too much detail on the blog for obvious reasons, however we now have a Judgment that states Swifts tariff of charges levied on the clients account were unfair within the meaning given by UTCCR 1999, and furthermore, Swifts conduct in pursuing the client in financial difficulties overstepped the line and caused an unfair relationship resulting in a considerable sum of money being ordered by the Court to be repaid to the client. This case sends a clear message to creditors, including debt purchasers, that the Courts will not accept or tolerate unfair practices nor will they accept oppressive calls to consumers struggling to pay their debts.

And on to NRAM or Landmark as they are now called. So, as everyone following the blog will be aware ive taken an interest in this company, ever since the NRAM v Mcadam & Hartley ruling ive been looking to get redress for those who had loans over £25k and lost out the protections the Consumer Credit Act offered to the customers with under £25k loans. It is clear that NRAM were responsible for misrepresenting to consumers that their loans were regulated when they weren’t, that their loans offered protections of the 1974 Act etc and from the Court of Appeal ruling its clear that the Court found a breach of warranty too. Anyway, letters of claim have landed at NRAM, time will now tell how they will be dealing with these matters, either they will settle amicably or the Court will decide the outcome, im hopeful that we will be able to provide updates on any settlements, but do bear in mind that some times settlements come with confidentiality attached.

 

Theres plenty more cases  going to trial over the next three months or so. I will try and update a little more regular, time permitting.

Marks and Spencers Credit accounts being incorrectly stated as current accounts and overdrafts

Over the past few weeks Marks and Spencers accounts have come back onto my radar. As many will be aware, i was the fee earner who was responsible for drafting the Defence in the case of Santander v Mayhew, that case involved some interesting arguments which as can be seen from the Judgment, prevailed.

The Harrods store card in that case was no different to the Debenhams cards, and Marks and Spencers cards, although im sure they will all claim their agreements are compliant and enforceable blah blah blah.

Anyway, M&S agreements have hit my radar, this time because third party debt purchasers are arguing that they are in fact overdraft accounts and therefore not regulated by the Consumer Credit Act 1974.

After hearing this argument i had to pick myself up off the floor from laughing so much, the thing is that when you look at the arguments being put forward you realise quickly that they are talking nonsense, why? well it is claimed that M&S current account was opened in 1997 in this particular case however with a quick piece of research i was able to prove beyond any doubt that the account was in fact incapable of being an overdraft on an account in 1997 as M&S didnt issue such accounts at that point in time.

The biggest problem is that many consumers wont know where to look or how to prove their case. If you do face such a claim however, there is help at hand, i have just recently dealt with such a claim brought by Arrow Global in the County Court. We successfully beat the Claimant at trial and had a declaration given that the agreement was unenforceable and furthermore costs were awarded against the Claimant.

Another day another declaration of unenforceability ………………. oh and a Default Judgment set aside with costs

Fresh off the back of our win in the High Court last Monday (details to follow later) we had two hearings on Thursday and Friday against Cabot Financial (UK) Limited and MKDP LLP respectively.

The first case involved a case which could happen to any of us, the Defendant had been out of the Country for an extended time, in their absence they had been subject to a County Court claim which as a result of not being here went undefended. Judgment was entered as a result and thereafter a charging order obtained.

The Defendant only became aware of this when they returned to the UK many months later.

The Defendant rightly sought information from Cabot but the response was at best misleading and factually incorrect. What was said was that this matter related to a Current Account thus the Consumer Credit Act 1974 didnt apply. The Defendant had held only one current account for the last 15 years and had never used the overdraft. Furthermore the Defendant had a perfect credit report and no debts outstanding as being owed.

The Defendant was a lay person and not trained legally. The Defendant was unaware of the difficulties in setting aside judgment, but fortunately found my firm at the last minute. We immediately took instructions and placed the otherside on notice that we were instructed. We submitted a witness statement in support of the application and invited the opponent to consent to setting aside the Judgment, they refused citing difficulty in obtaining instructions, furthermore they claimed that they needed more information about the client being out of the Country.

We stood our ground and pointed out that if they wanted more info then the onus is on them to ask, as the Defendant isnt psychic at all.

The hearing took place on Thursday, the Defendant was represented by Thomas Brennan who is one of the best barristers i have ever had the pleasure of working with, Tom dismantled the opponents case and succeeded in securing the set aside for the client.

We also secured 75% of our costs in doing so too. The case was a small claims matter but we were able to recover costs under CPR rule 27.14(2)(g).

The outcome was as expected, the Defendant no longer has a charge or judgment.

There were other issues with the Cabot matter but at this stage they are not things i can share at this moment.

Turning attention to the MKDP matter, well it was one of the MKDP cases, same old same old really. Ill prepared, misconceived, lack of evidence, illegible documents, the list goes on.

Once again the Defendant was being sued by MKDP concerning a Barclays credit card. The Defendant instructed us after reading this blog and noting our results with MKDP. We instructed Thomas Brennan and the result was as expected, total demolition.

The opponents had not complied with s78(1) Consumer Credit Act 1974, the Default notice was defective, the credit agreement was unenforceable due to non compliance with s61(1)(a) Consumer Credit Act 1974.

The case was a small claims matter, so once again we sought the costs under CPR rule 27.14(2)(g).

We were due to be in Court in the morning but due to an overloaded list we didnt get in til the afternoon. To save time, Tom put to the judge that the best way to deal with the case was to deal with each issue in turn, if we won on any of the points then we stop there and we win.

The Judge agreed, and we tried the s61(1)(a) Point first. The Judge accepted our submissions based on the evidence that the agreement was irredeemably unenforceable and declared this using his powers under s142 CCA 1974. This now means the creditor MKDP cannot record a default on the Defendants credit file see Grace v Blackhorse and therefore they must within 28 days remove the default or there may be a claim for damages coming their way too.

The Claim was dismissed and we also secured costs at 50% of our schedule, so this means the Defendant doesnt have to pay MKDP a penny and only has a minimum amount to pay us, a win win situation.

Lots more happening in the near future 🙂

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………

MKDP LLP Fail again

This is a somewhat belated post about the exploits of those wonderful creatures MKDP LLP. They have their own legal department (sic) and they instruct agent solicitors, certainly in the cases ive dealt with, so why to they keep losing?

Well, heres a prime example of stupidity in action.

So the story goes, client contacts me about a claim he had recieved, he didnt fully understand the claim for reasons ill get to shortly, so he defended basically saying “prove it” as he had no idea what they were wafffling about.

Now the pleadings alleged that the client entered into an agreement with Barclays Bank Plc but heres the thing, not only did the pleadings fail to give the important dates such as date of agreement, date of default, date of termination, date of last payment etc, they also alleged wrongly that the client had a barclaycard, he didnt.

He did however have a Morgan Stanley Dead Witter Bank Plc card, an entirely different company to Barclays.

So, on reviewing the case we decided that this erroneous pleading needed to be met with an amended Defence. To their credit MKDP did consent to the amended Defence although they were of the view that our case was doomed to fail, well i had a different view, we will find out who was right soon.

So, i drafted the amended Defence, i pleaded everything that needed to be pleaded in a clear and concise manner. We lodged the DQs and the Claim was allocated to the Fast Track , Yippeeeeeeeeee

So we draft our list of documents, there wasnt much to speak of, apart from a grossly illegible credit agreement which MKDP had sent in reply to the clients section 78 request, it was the Claimants list of documents that was very telling. No default notice, no deed of assignment, two documents which were central to their case and which werent in the list of docs.

Oooooh deary me, so we continue, and they serve their witness statement late, ut oh, more issues.

Our docs were served on time, our statement lodged on time etc.

So we write to MKDP and point out that they are now barred from adducing their evidence as they were late, and they need to amend their list of docs otherwise their claim falls on its sword. So after a ranty telephone call, they write saying their gonna apply. Now this was Feb, the trial was about 2.5 months away so plenty of time to put right their errors or at least you would think.

However, we didnt get a trial bundle from them, despite the Courts order, luckily i preempted this and prepared my own bundle neatly with all their non compliant documents omitted. They served their application to amend on the day of the hearing if my memory serves correctly or in any event it was not timely and certainly outside the guidance of Simon Browne in Regency Rolls v Carnell, so we opposed their application on numerous grounds.

They sent a solicitor, poor bloke, i actually felt really sorry for him, he could do nothing to save this case, it was in fact already displaying signs of rigor mortis, that was how dead the case was, but thye pressed on.

So the case comes before the lovely Deputy District Judge Lobb, my client was represented by the excellent Thomas Brennan, a barrister who i work with a lot, so firstly the Judge deals with their application, it was in effect a 4 or 5 part application, firstly they sought permission to amend their pleadings (ut oh i already told them they had got it wrong, shame they didnt do like i did and amend early) Judge refused, then they wanted to amend their list of documents, Judge refused, no explanation why they took so long and no explanation why they signed a statement which was wrong!!!! check before you sign.

Next up was the witness statement, now in truth their docs were a day late, we didnt oppose their application on this point but they shot themselves by not asking us to consent although i am not sure if we would have or not 😉

The Judge allowed their statement into evidence, but wait, theres a problem, they didnt have their witness, we had our client ready to go, but they had er no witness, oh dear, time to pipe up about Civil Evidence Act notices. So they had attached to their application such a notice, sadly it wasnt properly drafted and only covered their evidence in the actual application not the statement  which was late, and had other defects,. so the judge said you can have your statement but i am not allowing the civil evidence act notice at this late stage, the Defendant wanted to cross examine Mr Newton as he had made some interesting statements which we wanted to know how he could have made such comments and of course signed a statement of truth to that effect!!.

So, their poor Solicitor had no evidence, no witness, no hope in hell of doing anything here,to be fair he did have a good fight and id say against a Litigant in Person the outcome may have been different as it was the knowledge of the rules and case law that did for them really.

So the judge was about to dismiss the Claim, hold on a second we cant have that now can we, so Tom made numerous legal submissions on the credit agreement, such as it did not contain the prescribed terms and therefore was irredeemably unenforceable. The oppo valiantly tried to counter but it was truly hopeless at that point.

So, the Judge ruled in our favour, declared the agreement irredeemably unenforceable, dismissed their application soooooo what next………………………………oh yes, costs.

We had made a part 36 offer, ut oh, they didnt equal or better it, dam shame, now for submissions on Indemnity costs.

To cut a long story short, the Judge ordered the Claimant to pay Defendants costs on the indemnity basis, the client was slightly out of pocket as with all litigation there is nearly always a reduction in the bill on assessment, but the client recovered nearly all of his costs around 95% at least and he got the declaration of unenforceability.

Nooooooooooooooooow then, MKDP are still today recording a default on the clients file, silly billies, have they not read Grace v Blackhorse……………………..