Lloyds TSB V Benwell

[UK26]

Hi, need some advise

Principle Debt £13,182.92
Claimant: Lloyds TSB
Solicitor of Claimant: Sechiari Clark & Mitchell

Eaxmple
Defendant: MR David DDp Blogs
Correct Name: David paul Blogs


Allegedly the defendant took out a credit card agreement on 16/07/1999. During the account history the defendant allegedly defaulted on 17/05/2005 with a balance outstanding £12,805

At some point during 2006 the defendant received a county court claim pack in respect of said account.

The defendant immediately marked the paperwork as that a defence would be entered in respect of the claim issued by Sechiari Clark & Mitchell Solicitors on behalf of the claimant.

After not receiving a response from Peterborough County Court regarding the claim, the defendant later had letters posted to him from the courts Bailiff Office advising that a warrant of execution had been passed to the bailiff and that he made a previous visit but had no response.

The Sad part begins

I contacted the bailiff (his mobile number was on the card) to which I had an argument with him on the phone and confronted him at Peterborough Court (during mid 2006)

Here he refused to talk to me as per the argument on the telephone

So I then was forced to speak with another bailiff Mr Jones I recall (old chap)
Who I said I wanted to make a complaint about the previous bailiff as I had a few issues RE: no response from the court.

Mr Jones suggested I complete a form which suspends the warrant of execution on the understanding I make payments of £10.00 per month + a £35.00 application fee which I immediately paid.

I was then lead to a small office to which I was introduced to the Court Manager who wrote down my complaint. “Don’t recall hearing anything else from that”

However, I continued paying the £10.00 payment since 2006 to 2008

Until I contacted Sechiari Clark & Mitchell Solicitors around February 2008
As I was at this time writing to all creditors regarding bank charges.

It was here that I discovered the claim was made in an incorrect name that of “MR David DDJ Benwell”

I immediately pointed this out to the solicitors.
I asked the solicitor to send me a letter confirming the outstanding account balance.

This was received on 12th February 2008

On 12th February 2008 I sent a letter to Sechiari Clark & Mitchell Solicitors requesting a copy of the credit agreement and statement of accounts pursuit to sections 77/78 of the Consumer Credit Act 1974 to which I have not received any documents yet.


On 31st March 2008

I received a letter from Sechiari Clark & Mitchell Solicitors stating that I was not maintaining regular payments and was in arrears of £20.00

Despite the fact, I’ve put the account in dispute with Sechiari Clark & Mitchell Solicitors and also non-compliance of my Consumer Credit Act 1974 automatically surrenders the account in formal dispute.

On 14th April 2008 I served a default notice on Sechiari Clark & Mitchell Solicitors
For non-compliance.

On 15th April 2008 I contacted Sechiari Clark & Mitchell Solicitors by telephone to enquire if they had received the letter.

Sechiari Clark & Mitchell Solicitors confirmed, the documents I had request was requested as per my instructions on 12th February 2008 but yet been able to supply a copy. During the telephone conversation they also confirmed that the account is now on Hold.

I know i need to now get the Judgement set aside

Will this be easy given the above??

[excel1]

First of all although your name is relevant to your question, you have too many personal details on here, unfortunately the other side looks on here too

[UK26]

Thanks for your reply Excel1

from the above, do i stand a chance?

[excel1]

I would recommend that you PM pt2537 to take a lokk at this, but i think get the judgement setaside is crucial as the CCA seems to only work before judgements, so if it was set aside it would then be needed by them to take it back to court as you have now requested it.

[UK26]

Guys, passed this case to a solicitor as lloyds where taking ages to supply the agreement. below is a copy

is it enforceable? i dont think it is

[UK26]

here is a larger image of the bottom of the credit agreement - makes easy reading

[IdaInFife]

did you only receive this or did you also get a seperate copy of the terms and conditions


ida x

[UK26]

will now scan in the terms

[IdaInFife]

It was just so to know what letter to respons with:

send them non complaince:

Dear Sirs,
Account Number: XXX
Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974
I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.
To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.
This breach of the agreement can be demonstrated as follows;
As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.
Before leaving section 180 there are two other sections that should be remembered these are:
Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;
And more importantly
Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.
You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.
Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.
The regulations state:
(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;
(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);
It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.
The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.
Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.
It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.
I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues
Yours faithfully


ida x

[UK26]

So, the credit agreement sent is not enforceable then?

first, i need a way of setting side the judgement

not going to be easy as the judgement was passed in 2006

[UK26]

Look at this, is it normal

[UK26]

been told, i need to base an application around CPR 13 rule

that i was not served with the documentation.

can someone please help me with this, never done one before and this is going to be hard enough getting this done, so a very strong application needs to be sent, with a witness statement i guess.

cant see nothing about it under CPR 13.2

found someting at CPR 18.7.1
CPR 18 says, setting aside as of right etc then says go to CPR 13.2

[UK26]

guys, I now need to get working on this quickly

I have requested from the court the N1 Claim form, and any court orders etc.

need to get there judgement remove so i can enter counter claim

A New Way Forward

This would form as my counter claim for refund of payments made to them.

also need to have there case struck out, due no unenforceable credit agreement.

[UK26]

N244 Application Notice

What order are you asking the court to make and why?

The defendant seeks an order under case number xxxxxxxx to set aside judgement on the following grounds

• For the claimant to bring a civil case of action against the defendant for repayment of an account regulated under the Consumer Credit Act 1974. The claimant must provide both the court and the defendant a copy of the credit agreement relating to this case.
• Both the defendant and the defendant’s solicitor have requested this documentation under S78 of the Consumer Credit Act 1974. The claimant provided the defendant with an application form, which does not contain the prescribed terms. Furthermore, the claimant did not sign this document and with theses items missing, the agreement was not properly executed.

• 
  
• Therefore, it is denied the claimant has a legal caules to bring this matter to court.