Lloyds TSB Platinum Card - Court Claim

[iOiO]

Hi guys bit of an urgent one I'm afraid

 

Been away from home for a few weeks but got home today to discover a Court Claim Form from Northampton dated 19th Feb

 

Rang Northampton who said no action had been taken on it as yet, but to file an acknowledgement of service online which I promptly did, as this should give me time to file a defence.

 

Have some time ago been in communication re a CCA with Lloyds TSB with regards this card, which changed midstream from a visa card to a mastercard and they have admitted that they can find no agreement with regards the mastercard, and the terms and conditions they supplied with the visa agreement has a start date after the date I signed the original agreement and the agreement itself is not signed anywhere by Lloyds TSB.

 

Been looking through the forums but cant seem to find anything similar

 

Do I file a defence, if so how do I word it?

 

Or send a CPR 31.14 letter to their solicitors or is it now perhaps too late in the day to do this?

 

I would very much appreciate some prompt responses with this as you can appreciate, as my time is quickly running out on this one.

Edited August 5, 2009 by iOiO
Change of title

[GamekeeperToPoacher]

Hi,

 

I am no expert but would recommend a CPR immediately.

 

I am sure that someone more knowledgeable will be along shorrtly

 

GKTP

[DocH]

Hi i0i0,

 

Did Northampton mention the date when your defence needs to be filed. If not can you ring them tomorrow to find out please.

 

Would you also please type up the Particulars of Claim (POC) precisely as they appear on the claim form, but omit any monetary values.

[iOiO]

Hi there

 

They mentioned 23 March which I presume they calculated from their 28 days +5 days rule

 

The Particulars of Claim are as follows

 

1. By an agreement in writing & regulated by the Consumer Credit Act 1974, the Claimants issue to the Defendant a Lloyds TSB Platinum Card, for the purpose of the Defendant acquiring goods/service on credit.

2. Clause 7 of the agreement provided that the Claimants would furnish the Defendant with a monthly statement showing the balance currently due, the minimum payment to be made & the date for payment. If the balance was not paid, then provided the Defendant made the minimum payment on or before such date, the remainder of the balance should remain outstanding & the Defendant should pay interest upon it per month in accordance with clauses 5, 6 & 9 of the agreement.

3. In breaching the agreement, the Defendant failed to make payment & on xx/04/08 the Claimants issued a Default Notice pursuant to section 87(i) of the Consumer Credit Act 1974

4. On xx/05/08 the Claimants did issue a Formal Demand to the Defendant.

5. THE CLAIMANTS THEREFORE CLAIM THE BALANCE DUE UNDER THE AGREEMENT

Edited March 18, 2009 by iOiO

[DocH]

Thanks for that. Because of the limited amount of time to respond to this now, you are going to have to submit a holding defence (or embarrassed defence as it is referred to). You'll be able to file this online at the MCOL.

 

You need to get this letter of to the claimants solicitors tomorrow. I would suggest you send it by Special Delivery, and when you sign it put a couple of horizontal lines through the signature:

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the default notice

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

Before sending it, please have a read of this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

If you have a look around this forum you'll see several examples of holding/embarrassed defences that you can use.

[iOiO]

Thank you so much DocH for coming to my aid so promptly.

 

I have found this embarrassed defence, do you think it would be suitable in this case? or perhaps there is something I need to add to it?

 

1.The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

2.Even making allowance for the Northampton Bulk Regime the claim fails to disclose sufficient information as required by the CPR, there is no reference to any account number, no date of alleged agreement, no date of alleged default or details of any default notice served in accordance with s87 (1) Consumer Credit Act 1974, the claim is missing vital information.

 

3. Without admission that any cause of action is shown by the Claimant it is denied that the Claimant has a claim whether as pleaded or at all.

 

4. No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon

 

5. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimant’s claim appears without merit

 

6.Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

I presume I will need to delete the section I have highlighted in blue

[42man]

Some great advice as usual from DocH....get the CPR 31.14 request out ASAP (send everything recorded)...14 days to acknowledge the claim form within 14 days of the date, then 14+3 days in which to submit a defence....and yes an embarrassed defence is the usual thing to do especially so if they don't provide an answer to the CPR....

[Last of the Mohicans]

Good luck iOiO

 

DocH, some great text here:

 

by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

Can I use it where I've maked it in blue in my own case please? Thread is here

[iOiO]

Thanks for your help thus far guys, your a godsend! Thanks for the good-wishes from LotM too, good luck with your case too, which I will be following with interest.

 

Sent off the CPR 31 request this morning.

 

Now very anxious to file my defence ASAP online with MCOL.

 

Anyone able to advise on the suitability of the defence I have quoted above, or perhaps know of something that fits the bill a little better? as I don't want to have any holes in it especially at this late stage.

 

Thanks in anticipation.

[heliosfa]

Their POC says they issued a Default Notice. Did you ever get one?

 

If you did, I don't suppose you have a copy of it?

 

Do you have them admitting no agreement for MasterCard in writing?

 

Can you post up a copy of what they sent for the Visa?

 

Thanks,

H

[iOiO]

Hi H

 

Yes I have a letter from LTSB stating that no data could be found regarding the agreement on the Mastercard account.

 

I have been reading through this tread http://www.consumeractiongroup.co.uk/forum/legal-issues/178441-lloyds-issue-court-claim.html#post1926202 regarding SC&M's dirty tricks and am now getting very concerned (especially given that they will receive my CPR 31.14 tomorrow)that they may try to get a judgement by default before I can at least file a suitable embarrassed defence.

 

Have spent the last two days searching the forums for a suitable defence, until my brain physically hurts!

 

Please, please, please can someone help with this, as I really think I have to file something by the morning to avoid this.... or perhaps I am worrying too much?

[underdog13]

I'm sorry I don't have the experience to answer this for you, Ioio, but ding the red triangle to alert the site team if no-one else comes along.

 

Wishing you the very best of luck:) Lloyds changed my visa to a mastercard too, and haven't sent me any docs for either account!

Edited March 19, 2009 by underdog13
typo

[DocH]

Hi H

 

Yes I have a letter from LTSB stating that no data could be found regarding the agreement on the Mastercard account.

 

I have been reading through this tread http://www.consumeractiongroup.co.uk/forum/legal-issues/178441-lloyds-issue-court-claim.html#post1926202 regarding SC&M's dirty tricks and am now getting very concerned (especially given that they will receive my CPR 31.14 tomorrow)that they may try to get a judgement by default before I can at least file a suitable embarrassed defence.

 

Have spent the last two days searching the forums for a suitable defence, until my brain physically hurts!

 

Please, please, please can someone help with this, as I really think I have to file something by the morning to avoid this.... or perhaps I am worrying too much?

 

If your defence filing date is the 23 Mar, you have until 4 pm on that date to file it. MCOL is normally available throughout the weekend for filing your defence, so I think you can relax a little on that score.

 

Could you please provide an answer to H's question concerning the Default Notice. Depending on what your answer is we may need to change that section of the defence.

[iOiO]

Thanks for those calming words DocH

 

My main concern was that as I was late filing my AoS that Judgement could still be entered prior to me actually filing my defence, my thinking was, if I could get my defence in before they applied for a possible default judgement then it would be more likely that my defence be heard. Or perhaps now I have my acknowledgement in place (albeit late) we are now back on track with this?

 

Cant remember ever receiving a default notice from them on the alleged debt but looking for this document at the moment. If I were to find it would it be wise to admit it here?

Edited March 19, 2009 by iOiO

[iOiO]

Following further reading on the forums, I have just been re-examining the Visa CCA they supplied me with and note the following failings

 

1. There are no prescribed terms on the signature document

 

2. The signature document has not been signed by anyone for Lloyds TSB

 

3. The Terms and Conditions supplied state "These conditions are correct as at 1st July 2004" whereas the application was made and accepted in June 2004

[underdog13]

Sounds promising, Ioio

[iOiO]

Bump

[creditcardmug]

Defence

 

1. I xxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

 

5. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The build up to this action

 

9. In the build up to this action, on the DATE I wrote to xxxxxxxxxxxx requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

xxxxxxxxxxxxxx replied to my request on the DATE supplying an Application Form without any prescribed terms.

 

10 The document supplied did not comply with the requirements of the CCA 1974

 

11. The courts attention is drawn to the fact that the without disclosure of the documentation the claimant appears to be relying upon, I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

13. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

13. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

14. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

15. Notwithstanding points 11 and 12, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

16. The claimant is therefore put to strict proof that such a compliant document exists

 

 

17. . Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

18. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

19. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

20. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

21. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

22. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

23. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

24. Alternatively, Should the court order the claimant to produce the nessecary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

 

[iOiO]

Thanks creditcardmug, excellent defence but as I am VERY limited in time for this one, I want to submit it online via MCOL and I believe that I a restricted to 8000 characters (or may be wrong in my assumption).

 

Any suggestions on how it could perhaps be shortened? What can I leave out?

[creditcardmug]

How many is it, didnt seem that long to me?

 

try taking out "the relevant act of parliament" section, if ness.

[havinastella]

Word count says it's 11431

 

 

Jogs

[creditcardmug]

If you cant do anything with that, i have a very short one, but i have to go now, so bump tomorrow

[iOiO]

Hi Guys

 

Anyone know what I can leave out of creditcardmugs defence posted above in order that I can fit it into the 8000 character 112 line limit set by MCOL as I really need to send this in by tommorrow at the very latest.

 

Do you have the shorter version creditcardmug? Or perhaps someone has another version?

 

How about the one I posted earlier (copied below), but I have a feeling that this is going to be insufficient for the purpose.

 

1.The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

2.Even making allowance for the Northampton Bulk Regime the claim fails to disclose sufficient information as required by the CPR, there is no reference to any account number, no date of alleged agreement, no date of alleged default or details of any default notice served in accordance with s87 (1) Consumer Credit Act 1974, the claim is missing vital information.

 

3. Without admission that any cause of action is shown by the Claimant it is denied that the Claimant has a claim whether as pleaded or at all.

 

4. No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon

 

5. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimant’s claim appears without merit

 

6.Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

[Last of the Mohicans]

Hi Guys

 

Anyone know what I can leave out of creditcardmugs defence posted above in order that I can fit it into the 8000 character 112 line limit set by MCOL as I really need to send this in by tommorrow at the very latest.

 

Do you have the shorter version creditcardmug? Or perhaps someone has another version?

 

How about the one I posted earlier (copied below), but I have a feeling that this is going to be insufficient for the purpose.

 

 

Sorry iO, I cant get it down except slightly below 11K, as I'm not 100% what could be dropped out without harming some relevant point

 

It's a great argument - how much of the Judges summings up needs to be in there though? Things like #12 for instance? Maybe others can comment whether it is sufficient to say (eg) "under xx of the xxxxxx act, a matter I will expand on if asked to by the Court" ?

 

Sorry bud...

[havinastella]

I would use CCM's and take it to the court first thing in the morning.

 

 

Jogs