Brandon Case

[stone-broke]

You should be laughin' all the way to the bank then.........or rather, at the bank for the mistake on their behalf!

[Basil Fawlty]

You should be laughin' all the way to the bank then.........or rather, at the bank for the mistake on their behalf!

 

Thats what I was thinking. Thanks

 

BF

[DonkeyB]

Not too sure where I stand as I dont know if the account was terminated.

The OC firstly didn't give me the required 14 days and secondly the account was sold before the 14 days was up.

How do I know if the account was terminated?

(Not taking this thread off track as I believe its relevant to the whole DN question)

 

BF

 

Let’s not forget that if a DN is invalid, an account can not be terminated via the Consumer Credit Act (s 87), so yes, a new, compliant DN could be issued.

 

However, in this case, Amex claim to have subsequently terminated the account via another CCA means written into the T&Cs. The judge mentioned this and was uneasy about it, but it forms no part of the judgment.

 

The appeal simply overturns the original summary judgment, ie. the judge should not have allowed it, as the faulty DN was NOT a de minimis issue. So, I think the implication is that if a company claims that their DN being wrong does not really matter, they are wrong – it does matter. But if they are proceeding under s 87, then I believe they could simply rectify their error and proceed. Remember, the act is there to protect the consumer by giving the opportunity to rectify the breach, not by doing the creditor out of their money.

 

Here’s some key passages:

 

Thirdly, if, as a matter of construction, the Default Notice has not or may not have allowed the minimum statutory period for Mr. Brandon to remedy the breach, then it is (at least) realistically arguable that the defect cannot be overlooked as de minimis. To my mind, this conclusion applies both to the failure to allow a minimum 14 day period and to the absence of prejudice flowing from the defect in the Default Notice. Insofar as DJ Gisby and HHJ Denyer thought otherwise, I am, with respect, unable to agree.

 

And:

 

The starting point here must be the reminder that this is a case where a major commercial enterprise is seeking summary judgment against a consumer. It is true that the underlying "merits" undoubtedly favour Amex, as already sufficiently canvassed. But it is also true that it is and was incumbent on Amex, especially when seeking summary judgment, to get its tackle in order. If it has not (or not sufficiently) done so then, however unfortunate, it should not have been granted summary judgment, so that it will have to start again or depend on its subsequent termination under s.98A of the Act.

 

Mr Brandon still has a case to answer, I think – all he has done is overturn the award of summary judgment.

 

Whether Amex want to continue is another matter, but I think Amex have burnt some of their bridges because they pushed the case, and tried to introduce new evidence that was not in their original claim. Any further action would not do them any favours.

 

Please, don’t anyone start talking about unlawful rescission, cos it’s got bugger all to do with the actual judgment.

[dadofholly]

No, because they've already terminated the account.

 

I thought an account could not be terminated on the back of a faulty DN

 

Or am i wrong?

 

Thats what I thought Donkey - I should of read the whole thread before posting.

[dizzyblonde1966]

Once a debt has been terminated and assigned, how can the new dca rectify the problem to start again, ?

surely only the OC could rectify the problem , which sort of leaves the dca who bought it in a bit of trouble

 

The judge clearly says the creditor cant default via one method and then go on to say it could have terminated anyway under a different t+c if they got the first method wrong, he wasnt having any of that, heres the quote from the judgement

 

 

…if you go down the default notice route then it really does not lie in your mouth afterwards to say, 'Well, we didn't give you 14 days but who cares. We could have done it some other way anyway.' If you decide to go down the default notice route it seems to me that it is certainly arguable that that is a route by which you are bound and which you must follow."

[DonkeyB]

Once a debt has been termianted and assigned, how can the dca rectify the problem to start again, ?

surely only the OC could rectify the problem , which sort of leaves the dca who bought it in a bit of trouble

 

The judge clearly says the creditor cant default via one method and then go on to say it could have terminated anyway under a different t+c if they got the first method wrong, he dismissed that as a possibility,

 

No, he did not dismiss it – he simply said that the fact Amex COULD do that was not a reason the original SUMMARY JUDGMENT could stand. Amex tried to say after the original case, in the first appeal, that even if the DN was wrong, they could terminate another way and thereby still have summary judgment – but the law lords have disagreed, because they did not raise this possibility in their SJ application.

 

This case was about the fact that the judge in the original case allowed summary judgment because he said a faulty DN was a de minimis issue, ie. trivial, and did not prejudice the debtor. This case has overturned that ruling.

 

If an account has been sold after the issue of a dodgy DN, then it remains ‘live’, and the new owner would have to issue a correct DN to take advantage of s 87. At this stage it would have nothing to do with the OC. So, if a creditor goes to court on the back of a dodgy DN, that is a complete defence until the situation is rectified (though we’ve now heard of cases where judgement has been granted subject to this happening, which seems wrong to me).

[dizzyblonde1966]

DonkeyB

Sorry I had already altered the wording by the time you re quoted and posted

The way im reading that section is the judge is saying if the creditor decides to go down the default notice route, they are then bound by it and must follow procedure,

[DonkeyB]

Look at the last words of the judgment. They are clear:

 

If it has not (or not sufficiently) done so then, however unfortunate, it should not have been granted summary judgment, so that it will have to start again or depend on its subsequent termination under s.98A of the Act.

 

In other words, they cannot have summary judgment on the basis they sought it – they have to go back to the drawing board, or rely on their s98 termination. It ONLY refers to the summary judgment.

 

The crux of this judgment, IMO, is that breaches of the statute CANNOT be fobbed of as irrelevant. If a DN is defective, judgment should not be entered – certainly not summary judgment, at least, as there would be triable issues.

[Desperate Daniella]

Hi DonkeyB,

 

Brilliant news today for Mr Brandon, although we don't yet know what Amex will do next.

 

I'm very muddled here.

 

So, if you have the same dodgy DN, as many of us do, but they have not terminated the account, then presumably they can sell it on to someone else? But for that organization to issue a [valid] DN, wouldn't they have to have an agreement? And if they don't have an agreement, how can they issue a DN? I know they can buy acccounts and say you have defaulted on the original agreement with the OC, so effectively after today's judgment I can't see why Amex can't just sell on all these accounts with dodgy DNs and then we'll be up against yet another DCA?

 

There again, if the accounts have been securitized, can Amex legally sell them on to a DCA? Amex flatly refuse to state whether or not their accounts have been securitized and if they haven't been why would they not state this outright?

 

I'm really not certain where this judgment leaves those of us with dodgy DNs but no termination.

 

DDx

[frettful38]

LOL Donkey looks like you opened up a can of worms here............I can see the Brandon case turning out like the DN thread we had

[Basil Fawlty]

I'm now officially more confused today than I was yesterday!

 

BF

[DonkeyB]

I think all this judgment is really about is that judges cannot so easily override statute. Statute is there for for a reason!

 

The judges here made it clear, I think, that an incorrect DN could certainly prejudice the defendant, but only in terms of this summary judgment. As the last para states, it is up to Amex if they want to go back to the start and go through the motions of s87, or attempt enforcement relying upon their s 98 termination. These are different issues, but clearly the judges believe Amex have every right to still do this (though the s 98 route is, AFAIK, untested after a failed s 87 attempt – anyone know if failure of one precludes the other?).

 

The judges’ comments led me to believe they did not seem happy with Amex using s 98 AFTER they had invoked s 87 to attempt to terminate and enforce. Amex relied on s 87 in their summary judgment hearing, then tried to claim that even if they got the DN wrong, they could rely on s 98. The judges said they could not change horses mid-stream.

 

Whatever, Brandon may still have a case to answer. The debt has not gone away – only the summary judgment has.

 

Anyway, this is only my interpretation of the judgment. We need someone like pt2537 to interpret this for us, but alas he has changed horses...

[Basil Fawlty]

I think all this judgment is really about is that judges cannot so easily override statute. Statute is there for for a reason!

 

The judges here made it clear, I think, that an incorrect DN could certainly prejudice the defendant, but only in terms of this summary judgment. As the last para states, it is up to Amex if they want to go back to the start and go through the motions of s87, or attempt enforcement relying upon their s 98 termination. These are different issues, but clearly the judges believe Amex have every right to still do this (though the s 98 route is, AFAIK, untested after a failed s 87 attempt – anyone know if failure of one precludes the other?).

 

The judges’ comments led me to believe they did not seem happy with Amex using s 98 AFTER they had invoked s 87 to attempt to terminate and enforce. Amex relied on s 87 in their summary judgment hearing, then tried to claim that even if they got the DN wrong, they could rely on s 98. The judges said they could not change horses mid-stream.

 

Whatever, Brandon may still have a case to answer. The debt has not gone away – only the summary judgment has.

 

Anyway, this is only my interpretation of the judgment. We need someone like pt2537 to interpret this for us, but alas he has changed horses...

 

I thought I hadn't seen him for a while. When you say he's changed horses, you don't mean he has changed his views on defending these cases do you?

 

BF

[DonkeyB]

Maybe I should have said ‘changed channels’. AFAIK, he’s still sticking it sharply up DCAs and debt buyers.

[DonkeyB]

The good thing is that this is Court of Appeal – so it binds the lower courts.

 

Shame about the comments on the ‘penalty’ charges though.

[Desperate Daniella]

I think it's very clear from their comments that they don't approve of what Mr Brandon has done, but they have at least confirmed that a Statute cannot be open to an individual judge's "discretion" and, as you say, it is binding on the lower courts.

 

Do we think pt2537 might come back at some stage? He left before I think when someone was very rude to him, but later re-appeared. Here's hoping!

 

DD

[dizzyblonde1966]

Will be interesting to see what Amex do from here, is there any way we will find out,?

[Desperate Daniella]

I'm sure we'll get an update from somewhere when Amex has decided what to do.

 

Mishcon's have not updated their website, naughty, naughty. Their last reference to the Brandon case remains their "win" in the High Court. I wonder when they are going to update that, because I'm sure that not doing so and implying that they won the case finally would be misrepresentation, wouldn't it?

Edited October 26, 2011 by Desperate Daniella

[rebel11]

Maybe they are struggling with the word "lost", three consinets and a vowel:wink:

 

I'm sure we'll get an update from somewhere when Amex has decided what to do.

 

Mishcon's have not updated their website, naughty, naughty. Their last reference to the Brandon case remains their "win" in the High Court. I wonder when they are going to update that, because I'm sure that not doing so and implying that they won that case would be misrepresentation, wouldn't it?

[Desperate Daniella]

Oh, come on, it's a whole syllable!

[dadofholly]

I always thought a syllable was the male version of a sillycow

 

I'll get me coat - and wellies

[Desperate Daniella]

I thought wellies were for sheep.

[DonkeyB]

Don’t go there.

 

The judges were a bit unfair about Mr Brandon – I wonder if he can take action against them? They branded him a bad credit risk, without foundation as far as I can see – all he was doing was upholding his right to be treated according to statute. Looks like he has been ‘judged’ as well.

[Desperate Daniella]

The judges will not have wanted to give Mr Brandon his appeal, because it really does go against any banks with dodgy DNs, not just Amex. However, to go against him would have meant over-riding the Statute and that would have been very difficult too. In the end they made the right (legal) decision, but they were making it clear they don't approve of him, or anyone else, trying to avoid their debts by using the small print - even if it is legal and the banks' own faults for not getting their paperwork in order in the first place.

[rebel11]

The Naked Gun, 'Don't call me Cybill'

 

Oh, come on, it's a whole syllable!