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Congrats to Aurora for High Court appeals win

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asked on Feb 16, 2015 at 14:27
by   notalawyer
This thread continues from
http://www.lawyerment.com.my/boards/article-Malaysia_Business_Consumer_Bankruptcy_Law-2933.htm

Hi Aurora,
Now comes hard part, to win again at the full trial.
Please prepare your defense and post it here for checking.
You don't have much time left, and pls don't do things last minute again.
Also post the Draft Perintah for your High Court win here, you need it to pressure the bank to give up.
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answered on Feb 19, 2015 at 04:05
by   notalawyer
Do not attach any exhibits to your defence at this time.
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answered on Feb 19, 2015 at 04:18
by   notalawyer
Final draft...

DALAM MAHKAMAH MAJISTRET DI KUALA LUMPUR
DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA

GUAMAN NO : -----------TAHUN 2014

ANTARA

ABC BANK BERHAD (No. Syarikat:-----------T) .. PLAINTIF
DAN
---------------(No. K/P: --------------) .. DEFENDAN

PEMBELAAN

1. Tarikh terakhir bayaran ansuran dibuat kepada akaun kad kredit tersebut adalah sekitar Jun 2004.

2. Sekitar bulan September 2004, kad kredit defendan telah dibatalkan oleh Plaintif, selaras dengan Garis Panduan Bank Negara Malaysia (Classification and Impairment Provisions for Loans/Financing) yang diperlu dipatuhi Plaintif sebagai Bank Komersil.

3. Plaintif tidak pernah menghantar kad kredit gantian/baru kepada defendan sejak tahun 2004.

4. Plaintif terus menghantar penyata kad kredit setiap bulan kepada Defendan yang menuntut bayaran penuh daripada Defendan sejak tahun 2004.

5. Agen-agen Plaintif telah beberapa kali menelefon dan mendesak Defendan untuk membuat pembayaran penuh akaun Kad Kredit sejak tahun 2004.

6. Akaun kad kredit Defendan adalah akaun kad kredit biasa tanpa sebarang keistimewaan.

7. Tuntutan Plaintif kini telah dihalang had masa dibawah Seksyen 6(1), Akta Had Masa apabila Plaintif tidak mengambil sebarang tindakan undang-undang dalam tempoh 6 tahun dari tarikh kad kredit dibatalkan.

8. Klausa 20.1(d) Perjanjian Kad Ahli mengatakan bahawa tiada Notis Penamatan perlu diberikan dan penamatan berlaku secara otomatik apabila akaun kad kredit mempunyai tunggakan pembayaran.

9. Notis Penamatan yang dikeluarkan oleh Plaintif pada 07.07.2014 hanyalah satu percubaan untuk menghidupkan semula hutang yang telah lama lupus, kerana mengikut Klausa 20.1(d), tiada Notis Penamatan diperlukan.

Pembelaan ini difailkan oleh Defendan yang beralamat





_________________
Defendan
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answered on Feb 22, 2015 at 20:28
by   notalawyer
Don't forget to file your defence and mail a copy of it ( by registered mail )
to the bank lawyer before 22nd Feb 2015.
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answered on Feb 23, 2015 at 16:19
by   Aurora
Thanks Notalawyer. Yes indeed its neat. Ill file both the perintah and the defence today
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answered on Feb 23, 2015 at 20:36
by   King
Looks good. tq notalawyer
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answered on Feb 24, 2015 at 18:13
by   Queen
"Looks Good"?????
U just come back from Ipoh ke?
Y u no come with angpow to see me first? I am QUEEN ma...
Mcm belum bangun, soul is still up north...!!

The above is not only good but the BEST since this forum started. Sharp, precise and refined.. No beating around the bush. The more the respondent write, the more the plantiff lowyer beats round the bush to confuse the Judge. Look at the initial SOD and the SOD now and you would understand.

Mana POMELO from the north for me, notalawyer and Aurora..??
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answered on Feb 24, 2015 at 19:33
by   notalawyer
Hi Jeff05,

You asked earlier about how to Go Fishing in a Court case.
Aurora's case is an example of how to do fishing.

We managed to fish out
a. the Card Member Agreement and use clause 20.1(d) against them
b. the strategy the bank to use Notice of Termination to circumvent Limitation Act.
c. the Authority ( previous case laws ) they are going to use.
Now we know which authority they are going to use, we can better prepare for it.
d. the Option clause strategy they are going to use in the CardMember Agreement.
So we now arrange the Statement of Defence in such a way to kill both their strategies.

We lost round one, but losing the first round is necessary to fish out their strategy and prepare for round two.  Like chess, you can purposely lose the first game to see the opponent's style of play.
All the previous battles so far was not a wasted effort, but a very important fishing expedition.

The bank's mistake was to show their hands too early, they have no more surprises left.
We still have a few suprises in store, because luckily we did not file a Proposed Defence earlier.
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answered on Feb 24, 2015 at 22:31
by   jeff005
Dear notalawyer,

Tqvm for the detailed explanation for us laymen/women..

Brilliantly dissected and executed stragetically..

But why am I starting to have this funny feeling..

That.. on the next hearing date the bank thru their lawyers may chicken out and withdraw their case..!! How much can our dear Aurora counter claim? (we use the proceeds to go Legoland ok??)
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answered on Feb 24, 2015 at 23:13
by   jeff005
Not only it is a win for this forum but this particular case may start a precedent for others to start fighting against the oppressive banks.

Looking backwards, there may be hundreds of thousands cases whereby the 6 years limitaion has been breached and lower courts awarded judgement in favour of banks because of the "opysen" clause. These 100's of thousands cases resulted another 100K bankruptcies.. which actually could be avoided..

Thanks to "notalawyer" and "Aurora" there is some relief for credit cards debts. But it should not be use to avoid paying financial debts. Oneself must be trained to be prudent with our financial resources..

Aurora's case is not abuse of credit card but a setup by her ex company - A BANK... So to all new forumers, pls do not misunderstand. That is why "we" strongly stood by her side.. For a abuser of cards debts, please do not think/expect the response from forumers here to be generous...

Aurora Case
1/ Her c.card is assigned to her by the employer-Bank.. All expenses is duly deducted via salary deductions.
2/ She changed bank. Her expenses on the credit card were supposed to be offset at time of termination. But the ex bank did not offset the salaries against the cards debts. Maybe already contra off but kept the monies in their own pockets. All these while the Old employer knew where she is.. and did not take any action.
3/ The purported "defaulted amount" should be less than 2K being made up of expenses in the course of her work.
4/ The old Bank waited 10years for the <2K to snowball to >30K and file for Judgement Debt and possibly for Bkcy to force her to pay up via salaries deductions in new bank. There is no escape for her being in the banking line for more than 10years. From <2k to >30K.. you do the maths yourself... No wonder those Bankers whether M/F are so FAT and obese..!!!
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answered on Feb 24, 2015 at 23:23
by   vkpc
Forumers will do their best to help anybody in trouble with banks, whether the credit card was abused or not.  Everybody deserves a second chance.
We do this because nobody else is helping them.
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