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Thread: Phoenix Recoveries v Kotecha Jan 2011

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Quote 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

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Quote 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

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    Default 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.

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    Default 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!

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Quote 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

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Unfortunately in this court it does appear to be the case. in my first case the DJ was on good terms with the barrister, who had to explain who the SRA were to him.

    This is why I am trying to negotiate a f&f as well as looking for anything to help in the next imminent case

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Quote Originally Posted by cymruambyth View Post
    Unfortunately in this court it does appear to be the case. in my first case the DJ was on good terms with the barrister, who had to explain who the SRA were to him.

    This is why I am trying to negotiate a f&f as well as looking for anything to help in the next imminent case
    you are trying to settle? a case where there are no statutory terms anywhere? with the Devendra Kotecha Judgments?

    I dont follow?

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    It is my OH's case, we have applied for me to represent him; he was with me on the 2 failures and doesn't think it is worth fighting, so I have been trying to negotiate a f&f. Negotiations began before this result (unsucessfully so far .....) and court is within the next 10 days.

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Quote Originally Posted by cymruambyth View Post
    It is my OH's case, we have applied for me to represent him; he was with me on the 2 failures and doesn't think it is worth fighting, so I have been trying to negotiate a f&f. Negotiations began before this result (unsucessfully so far .....) and court is within the next 10 days.
    id suggest getting Counsel to represent you, if you win, the opponents will pay the costs of the barrister in any event, so if your case is that strong then you should nt have any thing to worry about

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    [QUOTE=pt2537;194748]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[/QUOTE

    Agreed.

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Thanks pt, I'll see if there is anyone who is local, understands the CCA, can work on the date I need, is direct access and not too expensive!

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Great, I've tried the direct access route; 'I have a fair grasp of the legal concepts .... we the small sums involved....may not be financially viable to be represented....'
    I'm back on my own again, so any advice gratefully accepted!

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Urgghh doesn't sound too positive then.

    On your last case, which I know you lost, was it fair that you lost or id you feel trampled on and sidelined by the other side ? If your case is strong and with the backup of Kotecha, even if the judge decides the terms are linked to the front page of the agreement, those terms still need to be the correct ones from inception and you need to get your evidence sorted to show they couldnt possibly have been - have you already argued that in your defence/witness statements etc ?

    I don't know if we have the jugment transcript available yet as that should have much more detail in.

    In your negotiations for settlement have you bought up Kotecha at all ?

    Have you posted up their witness statements and the relevant documents anywhere, as more eyes may help get your arguments straight.

    In your defence you mention some prescribe terms that are missing which the other side say in their WS don't need to be there?

    Obviously keep trying to sort out rep if you want to go that way but also be absolutely ready to go in yourself as LIP while negotiating on a WP basis.

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Thanks for replying, I have started a thread in VIP re their attempt to collect s69 interest; instead of taking over this topic I will post more information there.
    Re previous defeats, I feel that I didn't have much chance because of the balance of probabilities rule, I could probably could have presented the case better, however I did cover all the points with case law etc. The DJ did not listen or note everything that I said.
    Re a settlement I started before Kotecha and they haven't replied since.

    My other thread http://www.legalbeagles.info/forums/...ad.php?t=26452
    Last edited by cymruambyth; 1st February 2011 at 18:16:PM.

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    If you choose to defend this in the SC court then you might consider taking the judge through the relevant paragraphs of the Carey judgment followed by C of A decision in Kotecha and finally the OFT guidance on information requests made under S77 and S78 CCA. Particulary para 2.21 of the guidance. Take you time and be well prepared for the hearing, make notes, you are attempting to "sell" your case to the DJ, so smile and confirm he understands your points before moving on. If possible ask why the other side believe the T&Cs are the correct ones. Above all do not rush your case and stay calm.

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    BAsed on my experiences with Wescot and the instance with a DJ I'd go with what PT says lay your case out for a local legal firm and see if the'll carry out a risk assessment to see if you can qualify for a 'no win no fee' deal.

    LIP is an upill struggle now as the other side will undoubtedly employ legal council and as good as you think you understand the legal concepts it'll be a challenge
    Light travels faster than sound. This is why some people appear bright until you hear them speak.

    Nemo me impune lacessit - No one provokes me with impunity. (Motto of the Kings of Scotland)

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Quote Originally Posted by frisp View Post
    BAsed on my experiences with Wescot and the instance with a DJ I'd go with what PT says lay your case out for a local legal firm and see if the'll carry out a risk assessment to see if you can qualify for a 'no win no fee' deal.

    LIP is an upill struggle now as the other side will undoubtedly employ legal council and as good as you think you understand the legal concepts it'll be a challenge
    I haven't been able to find a local no win no fee and time is running out. The local firm I spoke to thought I had a ggod grasp of the legalities and didn't think it would be financially viable; this was after court was provisionally booked. It looks like it is battle no3.

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Have you tried PT's firm Watsons Solicitors | Welcome ?

    PS website looks knackered at the moment.

    M1

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Thanks Mystery but local barrister said that as it is SC we would not be able to claim all the costs invloved; the distance from pt's firm would add considerably to these costs.

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Quote Originally Posted by mystery1 View Post
    Have you tried PT's firm Watsons Solicitors | Welcome ?

    PS website looks knackered at the moment.

    M1
    cant you tell, IT isnt our strong point lol

    Actually we were waiting til the recent case results come out before we upgraded it, but the webby is being sorted

    and btwm we did a case in plymouth, had one in blackpool, another in hastings, and one in the north east.

    Distance is no problem

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Quote Originally Posted by jebedee View Post
    If you choose to defend this in the SC court then you might consider taking the judge through the relevant paragraphs of the Carey judgment followed by C of A decision in Kotecha and finally the OFT guidance on information requests made under S77 and S78 CCA. Particulary para 2.21 of the guidance. Take you time and be well prepared for the hearing, make notes, you are attempting to "sell" your case to the DJ, so smile and confirm he understands your points before moving on. If possible ask why the other side believe the T&Cs are the correct ones. Above all do not rush your case and stay calm.
    This sounds like a good idea, but surely is it not best to start by pointing out that the Waksman rulin gis not applicable as the banks were the defendant whereas it is me and the burden of proof is on them. Then to state that in this case Phoenix v Kotecha is the over-riding judgement of appeal court as interest rates not on any of documents supplied and t&cs have different clauses from those on from of application form and DN; t&cs refer to a further document that has not been supplied.

    Then follow on with further arguments about s 61, NOA, DN etc

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    This aint looking good and kills off the sec 59 argument.


    http://www.bailii.org/ew/cases/EWCA/Civ/2011/67.html

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    Angry Re: Phoenix Recoveries v Kotecha Jan 2010

    Quote Originally Posted by Ihaterbs View Post
    This aint looking good and kills off the sec 59 argument.


    http://www.bailii.org/ew/cases/EWCA/Civ/2011/67.html

    This, in a written judgment??!!!

    "This is an appeal by Mr. Patrick Brophy against the order of Flaux J. dismissing his appeal against the order of His Honour Judge Million giving judgment in favour of HSBC Bank Plc for the amount due in respect of a credit card debt. It represents another attempt by the holder of a credit card to invoke the terms of the Consumer Credit Act 1974 ("the Act") in order to avoid paying debts incurred to the card issuer. "


    Or to put it another way

    It represents another attempt by the consumer to invoke law created to protect his interests against unscrupulous lenders


    How does a judge, sitting in COA get away with using such emotive language in what is supposed to be a judgment based on legislation and facts?

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    as i see that ruling- the mainstay of the appeal was that the creditor had not explained in the agreement the method by which they would "decide on the credit limit from time to time"

    Is is really any of the borrowers business as to HOW the creditor comes to a decision as to what the borrowers credit limit will be-

    if the creditor decides to increase or decrease the limit- why should the debtor be interested in how the creditor came to that decision?

    doesn't seem to me like a very good argument for an appeal

    if i am missing the point there- please correct me!

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    Default Re: Phoenix Recoveries v Kotecha Jan 2010

    Just so's you are aware there is a thread on Brophy Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to time.. - Legal Beagles Consumer Forum, might be wise to keep Kotecha and Brophy seperate discussions.

    (on Brophy I thought this argument was kicked out months ago by Slater v Egg so quite suprised he pressed ahead with it)


    p.s. shall i move last few posts over?
    Last edited by Amethyst; 3rd February 2011 at 06:45:AM.

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