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Phoenix Recoveries v Kotecha Jan 2011

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  • #16
    Re: Phoenix Recoveries v Kotecha Jan 2010

    There are no interest rates on any of the paperwork!

    Comment


    • #17
      Re: Phoenix Recoveries v Kotecha Jan 2010

      and this is a credit card?
      I work for Roach Pittis Solicitors. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

      If you need to contact me please email me on Pt@roachpittis.co.uk .

      I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

      You can also follow my blog on consumer credit here.

      Comment


      • #18
        Re: Phoenix Recoveries v Kotecha Jan 2010

        Yes Capital One

        Comment


        • #19
          Re: Phoenix Recoveries v Kotecha Jan 2010

          Originally posted by cymruambyth View Post
          Yes Capital One
          very very interesting

          This is not unusual it seems, i have had a few cases like this with the terms showing no statutory content at all.

          The question is have you pleaded in your defence that there are these issues? are they mentioned in your witness statement?
          I work for Roach Pittis Solicitors. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

          If you need to contact me please email me on Pt@roachpittis.co.uk .

          I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

          You can also follow my blog on consumer credit here.

          Comment


          • #20
            Re: Phoenix Recoveries v Kotecha Jan 2010

            This is part of my defence

            I wrote to the Claimant placing the account in dispute as I considered that their documentation did not comply with the requirements of The Consumer Credit Act 1974 in that it did not contain any prescribed terms and also that they had failed to supply any terms and conditions relevant to the agreement.

            . On the Claimant supplied a random copy of the terms and conditions with a hand written number on the top These terms and conditions did not appear to have any connection to the application form that they had sent previously; indeed they were not relevant to the time of the application
            Firstly I refer to the Short Application Form submitted by the Claimant and on which they are relying as evidence for bringing this claim.

            It is denied that this is a valid executed credit agreement within the definition contained within the Consumer Credit Act 1974 and that it is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

            ]. S60(1) of the Consumer Credit Act 1974 states that an agreement must contain certain Prescribed terms under regulations made by the Secretary of State and referred to as the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

            ]. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the agreement and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
            1. Number of repayments;
            2. Amount of repayments;
            3. Frequency and timing of repayments;
            4. Dates of repayments;
            5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

            The Claimant has not produced any Terms and Conditions as part of the copy of the alleged agreement produced under the order of the court and I have already demonstrated in Paragraph 5 above that those supplied in response to my request under S78 of the Consumer Credit Act 1974 are irrelevant as they cannot pertain to this account at the time the application for a credit card was made.

            . It is submitted the Short Application Form supplied by the Claimant cannot be regarded as a legally enforceable agreement as it falls foul of the Consumer Credit Act 1974 in that no prescribed terms are contained within this document.

            I note from Paragraph 17 of the Witness Statement submitted by the Claimant that they are under the misapprehension that the section of the statute referring to ‘prescribed terms’ does not apply to an agreement for ‘a rolling credit facility’. At trial I will refer to S60 of the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) to demonstrate conclusively that that there is no exception for their omission. Furthermore these terms must be contained within the agreement and cannot be contained within a separate document. I will refer to the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299[11] which provides the precedent for this opinion.
            Last edited by cymruambyth; 29th January 2011, 20:22:PM. Reason: sorry for the fonts

            Comment


            • #21
              Re: Phoenix Recoveries v Kotecha Jan 2010

              Originally posted by cymruambyth View Post
              [FONT='Arial','sans-serif'].This is part of my defence[FONT='Arial','sans-serif'] [/font][/font]
              [FONT='Arial','sans-serif'][FONT='Arial','sans-serif'][/font][/font]
              [FONT='Arial','sans-serif'][FONT='Arial','sans-serif']I wrote to the Claimant placing the account in dispute as I considered that their documentation did not comply with the requirements of The Consumer Credit Act 1974 in that it did not contain any prescribed terms and also that they had failed to supply any terms and conditions relevant to the agreement.

              . On the Claimant supplied a random copy of the terms and conditions with a hand written number on the top These terms and conditions did not appear to have any connection to the application form that they had sent previously; indeed they were not relevant to the time of the application [/font][/font]

              [FONT='Arial','sans-serif'] Firstly I refer to the Short Application Form submitted by the Claimant and on which they are relying as evidence for bringing this claim.

              It is denied that this is a valid executed credit agreement within the definition contained within the Consumer Credit Act 1974 and that it is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

              [/font]
              [FONT='Arial','sans-serif']. S60(1) of the Consumer Credit Act 1974 states that an agreement must contain certain Prescribed terms under regulations made by the Secretary of State and referred to as the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

              . The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the agreement and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
              1. Number of repayments;
              2. Amount of repayments;
              3. Frequency and timing of repayments;
              4. Dates of repayments;
              5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

              [/font]
              [FONT='Arial','sans-serif']The Claimant has not produced any Terms and Conditions as part of the copy of the alleged agreement produced under the order of the court and I have already demonstrated in Paragraph 5 above that those supplied in response to my request under S78 of the Consumer Credit Act 1974 are irrelevant as they cannot pertain to this account at the time the application for a credit card was made.
              [/font][FONT='Arial','sans-serif']
              [/font]
              [FONT='Arial','sans-serif']. It is submitted the Short Application Form supplied by the Claimant cannot be regarded as a legally enforceable agreement as it falls foul of the Consumer Credit Act 1974 in that no prescribed terms are contained within this document.

              I note from Paragraph 17 of the Witness Statement submitted by the Claimant that they are under the misapprehension that the section of the statute referring to ‘prescribed terms’ does not apply to an agreement for ‘a rolling credit facility’. At trial I will refer to S60 of the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) to demonstrate conclusively that that there is no exception for their omission. Furthermore these terms must be contained within the agreement and cannot be contained within a separate document. I will refer to the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299[11] which provides the precedent for this opinion.[/font]
              Your argument is a touch loose, dont forget they will be sending counsel, so your legal argument needs to be well reasoned and presented clearly.id suggest section 61 is very important too in showing the requirements.

              Also the Kotecha judgment is a key point to keep up your-sleeve, it goes in hand with the Judgment of HHJ Worster in Phoenix recoveries vs Dr "C" who was a client of ours.

              Both are credit card judgments and both are very very relevant
              I work for Roach Pittis Solicitors. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

              If you need to contact me please email me on Pt@roachpittis.co.uk .

              I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

              You can also follow my blog on consumer credit here.

              Comment


              • #22
                Re: Phoenix Recoveries v Kotecha Jan 2010

                Thank you for your comments.
                As for s 61, my signature is there and although it is only a squiggle for the OC a DJ at my local court informed me that it was industry practice for a cross or date stamp to be suffucient!

                Comment


                • #23
                  Re: Phoenix Recoveries v Kotecha Jan 2010

                  Originally posted by cymruambyth View Post
                  Thank you for your comments.
                  As for s 61, my signature is there and although it is only a squiggle for the OC a DJ at my local court informed me that it was industry practice for a cross or date stamp to be suffucient!
                  so if i signed a post it note,

                  that would be a binding document? of course not

                  The problem is that the signature is not the only requirement of s61 is it? it is the signing of a document containing the prescribed terms which is the prerequisite for the document to be properly executed, without this the document is improperly executed, and s127 operates on the courts discretion
                  I work for Roach Pittis Solicitors. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

                  If you need to contact me please email me on Pt@roachpittis.co.uk .

                  I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

                  You can also follow my blog on consumer credit here.

                  Comment


                  • #24
                    Re: Phoenix Recoveries v Kotecha Jan 2010

                    Originally posted by pt2537 View Post
                    ...........s127 operates on the courts discretion
                    For agreements prior to the 6th April 2007 the subsection 127(3) still applies.
                    They were out to get me!! But now it's too late!!

                    Comment


                    • #25
                      Re: Phoenix Recoveries v Kotecha Jan 2010

                      Originally posted by basa48 View Post
                      For agreements prior to the 6th April 2007 the subsection 127(3) still applies.
                      erm sorry if i wasnt clear

                      s127 controls the courts discretion on a section 65 issue.

                      that is what i meant
                      I work for Roach Pittis Solicitors. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

                      If you need to contact me please email me on Pt@roachpittis.co.uk .

                      I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

                      You can also follow my blog on consumer credit here.

                      Comment


                      • #26
                        Re: Phoenix Recoveries v Kotecha Jan 2010

                        Originally posted by pt2537 View Post
                        so if i signed a post it note,

                        that would be a binding document? of course not

                        The problem is that the signature is not the only requirement of s61 is it? it is the signing of a document containing the prescribed terms which is the prerequisite for the document to be properly executed, without this the document is improperly executed, and s127 operates on the courts discretion
                        Unfortunately one of my local DJs decided that a seperate leaflet of T&Cs was actually attached to the reply card (3 pages which were obviously folded due to the format and page numbering), even though neither side had suggested this, which is why I'm a little jaded

                        Comment


                        • #27
                          Re: Phoenix Recoveries v Kotecha Jan 2010

                          Originally posted by cymruambyth View Post
                          Unfortunately one of my local DJs decided that a seperate leaflet of T&Cs was actually attached to the reply card (3 pages which were obviously folded due to the format and page numbering), even though neither side had suggested this, which is why I'm a little jaded
                          but if there are no prescribed terms on any document submitted as the agreement, then as a matter of legal submissions, it is not enforceable
                          I work for Roach Pittis Solicitors. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

                          If you need to contact me please email me on Pt@roachpittis.co.uk .

                          I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

                          You can also follow my blog on consumer credit here.

                          Comment


                          • #28
                            Re: Phoenix Recoveries v Kotecha Jan 2010

                            Unfortunately on the balance of probabilities they would have been attached; also on the balance of probabilities i would not have paid the arrears on the DN even though he agreed it did not allow enough time because i hadn't paid it in the intevening years.

                            Comment


                            • #29
                              Re: Phoenix Recoveries v Kotecha Jan 2010

                              That was my second brush with the DJ, the first time he allowed SCaM to change the details of the POC in court; it referred to the wrong clauses in the t&cs but as this was small claims and it was pleaded as an administrative error it was ok!

                              Comment


                              • #30
                                Re: Phoenix Recoveries v Kotecha Jan 2010

                                Originally posted by cymruambyth View Post
                                Unfortunately on the balance of probabilities they would have been attached; also on the balance of probabilities i would not have paid the arrears on the DN even though he agreed it did not allow enough time because i hadn't paid it in the intevening years.
                                Ahh

                                Therein lies the difficulty faced by a litigant in person, as most banks will have counsel, and by contrast, the lip is on his own.

                                It seems to me that unless you have counsel in your corner you have an uphill struggle
                                I work for Roach Pittis Solicitors. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

                                If you need to contact me please email me on Pt@roachpittis.co.uk .

                                I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

                                You can also follow my blog on consumer credit here.

                                Comment

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