Pleadings again

I recently blogged about the issue of poor pleadings. Today i can give a working example.

I was instructed on a case where Lowell had issued proceedings for a debt. The pleadings were awful, they simply said “and the agreement was terminated”

Well we knew the Claim was based on breach of contract as it said so, and we know the agreement was alleged to have been terminated because it was pleaded, but how was the question that needed answering.

Nowhere within the pleading did it mention a Default notice or a s98A notice, no where did it say that the debtor failed to remedy the breach and the agreement was terminated, no where did it give the date of termination etc.

The editors of Goode are very clear that default notices must be pleaded along with the date of the notice and the date of termination. The Court of Appeal in PRA v Doyle also emphasised the importance of a Default notice not just for pleadings but because it is part of the cause of action and therefore cannot be overlooked.

The Claim was poor, so rather than file a Defence and run the case to trial we instead lodged a summary judgment application. This application has been successful in bringing the case to an end.

Also, when the application was lodged Lowells tried to adduce evidence to support their case, sadly they didnt read through it before lodging it with us, because the evidence said that a default notice was served in 2010, so even if they were right, limitation expired in 2016 and their claim came about in 2019, whoops.

I will be using this approach from here on with any case where a default notice is required but not served or more crucially not pleaded.

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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

PRA Group UK Limited v Segal

I am pleased to be able to provide a further update on another case which we have successfully defended. The case in question was PRA Group v Segal.

The claim arose out of a credit card agreement with MBNA, which our client argued was irredeemably unenforceable because the agreement did not contain the prescribed terms, and further the agreement was unenforceable due to non compliance with s78 CCA, and further the Default notice was in conflict with the s78 reply, so either s78 was complied with and the Default was bad or the Default was good and the s78 was bad, it could not be both.

We also challenged the charges for a credit card, since the Bevis ruling in the supreme Court  there has been numerous arguments by creditors that the default charges are not unfair, also we have seen creditors use the Abbey v OFT supreme court ruling as a way of getting around having default charges challenged.

Fortunately we now have a ruling, which addresses default charges, and has confirmed they can be challenged under UTCCR 1999 and that the supreme court ruling is distinguished as it deals with bank charges which are a fee for a service whereas default charges clearly are fees for breach of contract.

The segal judgment is available and will be posted when i am able to do so. Til then, another cracking victory for our client and great teamwork between QualitySolicitors Howlett Clarke and Thomas Brennan!!

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.