The PRA case, BMW v Hart, and Statute Barring

On the recent case which we won against the PRA Group (UK) limited, we asked the Court to try a preliminary issue. The issue, which the Court agreed to hear was
1) Had limitation expired before the Claim was issued and:
2) If the answer to 1 was no, then has the creditor complied with s78(1)Consumer Credit Act 1974.

Now the Court can try a preliminary issue, although often most consumers are unaware of this, but the Court can hear a simple point which can avoid the need for a full blown trial.

So we lodged an application to the Court, and the Court agreed to allow the application to be heard.

The issues in the case were quite straight forward, the last payment was over 6 years before the Claim was issued. A default notice was issued a long time later, and even then the default notice was right on the edge of limitation.

Our case was simple, the Creditor had failed to ensure that the Claim was issued inside limitation. The Default notice was simply a procedural step, and one that didnt stop limitation from running, and in any event the Court of Appeal in Swansea City Council v Glass gave some helpful guidance on the need for statutory notices.

And of course, one further point to note was that the contract had a contractual clause which allowed the creditor to terminate and demand immediate payment without notice, so their default notice argument fell on its backside.

The Claimant instructed Philip Mantle, a consumer credit expert and we instructed Tom Brennan (Grace v Blackhorse etc) and having worked with Tom many many times, i was extremely confident of our chances.

The case was funded by a no win no fee agreement, as was Toms fees, we were that confident of the case.

The matter came before the District Judge and the Judge simply couldnt follow the Claimants argument that a creditor could do nothing for 20 years and then serve a notice. That argument was referred to in Glass and it didnt succeed then, and its no surprise that it failed here too.

The Claim was struck out , and costs awarded in the clients favour.

If you have a claim with the PRA group or any other creditor or debt purchaser, then feel free to get in touch, we would be more than happy to help and to try and find a funding solution that fits all circumstances.

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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?

Hoist Portfolio Holding 2 Limited………….again they discontinue

Very little to say in this blog really, Hoist brought a claim, had no documents, couldnt provide any documents, a Defence was drafted on a fixed fee funding agreement, Claimant reviewed the Defence and decided that it lost its appetite for the litigation.

Discontinuance ensued.

 

The Debt in question related to a bank account, we challenged them on the basis that the bank charges gave rise to an unfair relationship under s140A CCA 1974.

Hoist dont seem to have much of an appetite to fight cases where we are instructed. They never seem able to show the assignment (wonder why) and they never seem to want to test us in Court. Shame.

Litigate at haste repent at leisure- Unreasonable conduct leads to costs CPR 27.14(2)(g)

A recent County Court ruling shows that the Court will order costs against a Claimant if their conduct is unreasonable in the course of litigation.

The facts can be swiftly summarised as follows:

Consumer goes into a shop to make a purchase, gets declined on a credit check, so goes to check the credit report and finds a County Court judgment which they had no idea about.

Consumer carries out checks, finds out that a claim was issued on their old address which they moved from years ago. Consumer also finds out it relates to a bank account, which the consumer had never had any dealings with nor had ever banked with.

Consumer speaks to bank, bank confirms bank account was opened fraudulently and was closed due to a fraud investigation.

 

Now then, at this point you would probably think, clear cut, easy to deal with, clear fraud so must be set aside? Well you would be wrong. And heres why

The bank had sold the debt to a third party, one Hoist Portfolio Holding 2 Limited. They resisted the consumers attempt at setting aside the Judgment, they opposed at every step, even when they were placed on notice of the fact that the bank had confirmed the account was fraudulent they failed to make the enquiries they should have made. Even when clear evidence showing the consumer wasn’t even in the area where the account was opened and could prove beyond reasonable doubt that the consumer had travelled hundreds of miles away, they would not accept the account wasn’t the consumers.

Only when clear evidence from the bank was put forward confirming the account was opened due to fraud, did the Claimant wake up and smell the coffee and discontinue. However, to get to that point the consumer incurred considerable costs. They had to carry the burden of proving their innocence.

So, when the discontinuance arrived, a letter requesting costs was sent, and ignored, so a formal application for costs per CPR 27.14(2)(g) was lodged with the Court.

Unsurprisingly, the Claimant tried to resist costs, i wont go into detail about what the Claimant tried to argue, but its clear they didn’t appraise themselves of their file before submitting their evidence. On our side, a 180 page bundle of correspondence showed their arguments were seriously holed below the waterline.

The judge was alive to the issues, and had no issue making a cost order on the basis the Claimants conduct was outrageously unreasonable. The Judge accepted the Claimant had failed to carry out the investigations which it ought to have undertaken once being placed on notice of the issues, and had the Claimant done so, it would have mitigated the costs incurred.

Indeed, the Claimant ought to have carried out its due diligence before it even issued a claim form in this matter, if it had done so it would have undoubtedly discovered the system notes from the bank showing the fraud investigation and the banks conclusions, and arguably wouldnt have issued without further investigations. Sadly, stupidly, they chose to issue the Claim without any further checks.

The judge assessed costs at £1000 plus VAT to be paid within 21 days. Lets hope they do or High Court enforcement will be getting a new file for action.

This case shows that even the small claims court can bite you if you behave unreasonably.

Another Hoist bites the dust…..

Another day another discontinuance arrives. Hoist Portfolio Holding 2 Limited seem to have lost the will to litigate or at least thats what were seeing from the Claims we are dealing with.

In the present matter, Hoist were faced with an application for discovery as they had failed to allow us to inspect the documents mentioned in the Claim form. The Claimant didnt even allow us to lodge the application as they discontinued without warning.

If you are being chased by Hoist or Robinson Way then let us know.