Link/Kearns claimform - MBNA/Virgin Credit card 'debt' *** Claim Dismissed with Costs***

[RedPillGuy]

Court today. Won with costs. Thank you Andy.

 

Kearns sent a agent down from London who was read into the brief but wasted a lot of time on irrelevant issues.

 

Judge pretty much demolished my arguments around the non-enforceable agreement.

He accepted the online agreement as original.

He accepted the tickbox as valid execution signature.

He accepted that the T&C were "in one document" even though you had to click a link to a separate web page.

I kind of expected all those.

 

Interestingly though he also accepted the Claimant's assertion that the agreement was non-cancel-able because no antecedent negotiations took place, hence no notice of cancellation was required in the agreement. Interested on anyones feedback on that.

 

Finally he turned to the DN.

He said that the Claimants assertion "had some force" that the notice period being to short was deminimus as I did not rectify in any case, but that the error on overstating the default amount was fatal.

[AndyOrch]

Excellent well done ...thread title amended to reflect the outcome.

 

The only time an agreement is none cancelable is if you sign for it on the creditors premises...all the rest ....On line etc are cancelable.

 

You will only benefit from a cooling off period if the credit agreement was made in one of the following ways:

 

For agreements signed away from the creditor’s normal business premises – i.e. at your home, place of work or at an exhibition stand

For agreements made at a distance (online, by phone or by post)

For agreements which fall under (1), you will have a cooling off period of 5 days, which begins from the time you receive the second copy of the agreement (containing the cancellation form). For contracts which fall under (2) and (3), you benefit from a 14 day cooling off period. Unlike the cooling off period for goods bought under the **Distance Selling Regulations (DSRs, the creditor may make a reasonable charge for any service (such as insurance cover) which was operating during this time.

 

There are specific guidelines on how you should cancel the contract, which must be notified to you by the creditor before or immediately after the contract is made. If the creditor does not make this information available to you, then your cooling off period will not begin until this happens.

 

With any contract or sale which is concluded away from the Creditors normal business premise, you must be sure you have been presented with clear written notice of your right to cancel, at or before the time the contract is made. If you have not, the contract is legally unenforceable. This notice, which cannot be in the form of small print, or otherwise disguised, must also provide a cancellation form and advise you on how and to whom a notice of cancellation is to be made. You can use the cancellation form provided or a simple written notice, as long as it is clear of your intentions. And as long as you have posted your notice of cancellation before the end of the cancellation period, it doesn’t matter when it is actually received. For this reason, it is always advisable to send it recorded delivery.

 

 

**Distance Selling Regulations

 

From 13 June 2014, the Consumer Contracts Regulations - which implement the European Consumer Rights Directive into UK law - apply to all purchases you make at a distance, for example online or over the phone.

 

This piece of legislation replaces the Distance Selling Regulations.

 

Again well done.

 

Regards

 

Andy

[RedPillGuy]

Thanks. So do you think the judge was wrong in law? We didn't really get into DSR, simply s76 definition of cancellable which then flows through to the requirement to be in the actual agreement.

 

Given how much time and money Kearns put into this, and gut feel on if they will appeal, or is this just a sausage machine to them?

[Bazooka Boo]

Excellent WELL DONE!!!

[AndyOrch]

Have to wait and sit it out but I have never seen them appeal a claim on CAG

 

" that the agreement was non-cancel-able because no antecedent negotiations took place"

Here is the relevant legislation

 

http://www.legislation.gov.uk/ukpga/1974/39/section/56

 

http://www.studentlawjournal.com/articles/2007/consumer/ccanteneg.htm

[RedPillGuy]

its been a week and not seen anything from the courts to confirm judgement, nor heard from Kearns regarding the payment of costs.

how long does the court usually take to issue the judgement?

 

Also, looking at my credit file, I see that the original default shows as Closed, but that Link had registered a new default in their name (updated 8/8/17). it still shows the default date 31/5/12 so should fall off in May next year?

They also have stated the balance to include all that interest that they are not entitled to without a court judgement.

 

Should I write to Link and demand removal from the credit file, as the court found the DN faulty, hence the termination was an unlawful recession?

[AndyOrch]

"They also have stated the balance to include all that interest that they are not entitled to without a court judgement." Irrelevant given you wont be paying it..let them add what they wish

 

Should I write to Link and demand removal from the credit file, as the court found the DN faulty, hence the termination was an unlawful recession? No...you still defaulted with the OC...stands for 6 years...no connection to court claim.

[RedPillGuy]

Link Financial keep chasing the alleged debt, even after losing in court, by letter and frequent text messages.

 

I wrote to them to state the debt is statue barred (last payment December 2011),

they have written back saying its not SB, as it was not defaulted by MBNA until 31May 2012.

Should I just wait 1 month then write again after 31 May with another SB letter?

 

My fear is that they will keep pestering even after that date - Or should i raise a Ombudsman complain straight away to get them to stop?

 

Their letter says that they can keep contacting me even if 6 years has passed, if we have been in contact during that period - which I guess is interpretative as we were "in contact" during the court case.

Edited April 30, 2018 by dx100uk
spacing

[AndyOrch]

Let them chase...block their texts...file their letters...they will get tired and move on to another unsuspecting cash cow.

 

Legally there are actions you can do to stop them but do you really wish to go to the expense and stress...far easier to ignore them.....and cheaper.

 

 

Andy

[dx100uk]

Link Financial keep chasing the alleged debt, even after losing in court, by letter and frequent text messages.

 

I wrote to them to state the debt is statue barred (last payment December 2011),

they have written back saying its not SB, as it was not defaulted by MBNA until 31May 2012.

Should I just wait 1 month then write again after 31 May with another SB letter?

 

My fear is that they will keep pestering even after that date - Or should i raise a Ombudsman complain straight away to get them to stop?

 

Their letter says that they can keep contacting me even if 6 years has passed, if we have been in contact during that period - which I guess is interpretative as we were "in contact" during the court case.

 

what letter did you send please?

 

link will carry on yes, as they are entitled too, even if the debt is statute barred, as long as they don't threaten court .

 

 

if you sent our statute barred letter then they should be doing neither and you can complain to the FCA under CONC rules but we need to see the letter please..

 

 

in E&W even if a debt is statute barred, it still exists and the 'creditor' can ask for payment

you can equally ask them to go away...

 

 

dx

[RedPillGuy]

Body of letter sent:

 

You have repeatedly contacted me via letter and SMS message regarding the account with the above reference number, which you claim is owed by myself.

 

I would point out that under the Limitation Act 1980 Section 5:

 

“An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

 

I would point out that in their consumer credit sourcebook, the Financial Conduct Authority states the following rules:

 

"...a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period." 7.15.4

 

"A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred." 7.15.8

 

The last payment or acknowledgement of this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed.

 

I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.

 

I look forward to hearing from you.

Yours faithfully

[dx100uk]

that's brill its our SB letter

they should cease all comms

if they don't then off to the FCA and complain I think is the route.

 

for now let it run