Lloyds TSB Credit Card - Claim form received

[The GodMother]

lol that makes me laugh what companys think a acceptable WP is.

Your sounds reasonable but i can see them going for it really. The reason i say that is because they get nothing monetary wise out of you which is obviously what they want well they get a big legal bill but thats it.

[citizenB]

I think your offer is far more reasonable mcuth

[mcuth]

I've rejected this offer as unacceptable and countered with the following: £1k lump sum paid to me, along with all LTSB CRA data removed as compensation for their incorrect default procedures & reporting; balance to be written off with no further liability on either side; case to be discontinued with both parties bearing own costs

 

So, waiting to hear back from SC&M, but at the moment we're ready for the trial on 28th November - scheduled to last 1 whole day

 

Received a letter frm SC&M today - perhaps unsurprisingly they've rejected my offer Anyway, we're scheduled to be in court on Frida 28th, so bring it on

 

Cheers

Michael

[pt2537]

Hi Michael

 

sorry i havent replied to your message mate, i really am struggling to find any spare time to breathe at the mo

 

i will see what i can offer if i get a spare mo, but im working all day tomorrow on a draft set of pleadings and i have a load happening next week so no promises

[mcuth]

Hi Paul

 

sorry i havent replied to your message mate, i really am struggling to find any spare time to breathe at the mo

 

i will see what i can offer if i get a spare mo, but im working all day tomorrow on a draft set of pleadings and i have a load happening next week so no promises

 

No worries matey - have a CMC on 3rd December on that one. Would just be grateful of you having a look over, but know how busy you are

 

For this case, I have now received a binder full of case authorities, and there's a recorded delivery package waiting for me at the post office to pick up, which I presume is their trial bundle. However, I do believe that they were due to file & serve by 13th November....

 

Cheers

Michael

[mcuth]

For this case, I have now received a binder full of case authorities, and there's a recorded delivery package waiting for me at the post office to pick up, which I presume is their trial bundle. However, I do believe that they were due to file & serve by 13th November....

 

Yup the new package is the trial bundle. They've included a supplementary Witness Statement that explains why the default on my CRF is dated Mar 07 when they allege a DN was sent in Dec 06 (apparently it's because they give so much time to comply with the DN ) - also that the reason the CRF Default is for ~£300 more than the DN is because they've added fees on. I think these are bogus arguments - a CRF Default date and amount should be exactly the same date as the DN if the DN requirements aren't satisfied (or at least the DN+10/14 days - i.e. the "if you do not do this by this date" date) - after all, I haven't defaulted on the "fees" that they've added on (which aren't included in the claim amount either) as they've not issued a DN for them....! Just need some case law for this one I think....

 

In the case authorities folder, there is a copy of the Rankine judgement - I'm presuming that they're going to rely on this for the "enforcement" definition (i.e. starting a claim isn't "enforcement"). Am I right in thinking that it's only a persuasive case, rather than a binding one - since my case and the Rankines' are completely different?

 

In Court tomorrow, so quick pointers on the above would be much appreciated please!

 

Cheers

Michael

[car2403]

Yup the new package is the trial bundle. They've included a supplementary Witness Statement that explains why the default on my CRF is dated Mar 07 when they allege a DN was sent in Dec 06 (apparently it's because they give so much time to comply with the DN ) - also that the reason the CRF Default is for ~£300 more than the DN is because they've added fees on. I think these are bogus arguments - a CRF Default date and amount should be exactly the same date as the DN if the DN requirements aren't satisfied (or at least the DN+10/14 days - i.e. the "if you do not do this by this date" date) - after all, I haven't defaulted on the "fees" that they've added on (which aren't included in the claim amount either) as they've not issued a DN for them....! Just need some case law for this one I think....

 

This is supported by the ICO's guidance on filing defaults with the CRA's;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf

 

Recording the amount of default

29 Original amount and current balance

Default records should show the original amount of the default as a snapshot in time and should reflect subsequent payments by showing the current balance of arrears. A common cause of disputes relates to the accuracy of the current balance. The current balance should be filed both by those who file monthly account information and those who file only defaults. It should be updated regularly. Defaults should be shown as satisfied where all payments have been received. If the individual no longer owes any money to the lender the balance should be shown as zero. The satisfaction of defaults is discussed at paragraphs 49 to 51

 

The date of default

31 The date of default recorded on the file should be the date on which a decision to file a default becomes effective according to the criteria discussed in paragraphs 9 to 16. If a notice of intention to file a default is served (see paragraphs 32 to 37), the default date should be the date the notice becomes effective. When a default is filed after a genuine and agreed variation in payment schedule has broken down, it should record the date of that breakdown subject to the conditions described in paragraph 21

 

I'd also suggest that 6 months is not an "adequate time" to allow you to comply with a DN - it seems very lenient, to the point of being unreasonable;

 

32 Lenders should tell their customers about filing information with a credit reference agency as part of the account opening procedure, in line with the requirements of the ‘fair processing code’4. This explanation will not normally refer explicitly to defaults and will often be distant from the events which cause them. Therefore we strongly recommend that a notice of the intention to file a default should be served. Many lenders now subscribe to trade association codes of practice which require this. This practice helps the transparency of the credit reference process and may even prompt payment, so avoiding the need to file a default at all.

33 Notices to comply with Sections 13.7 of the Banking Code5 and 7.5 of the Lending Code6 should provide adequate warning. A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing.

34 When a default occurs in line with the criteria in this guidance, and the lender has given the customer 28 days notice of the intention to file a default, then subject to paragraph 37, the lender may supply this information to a credit reference agency despite no advance warning when the account was opened.

 

In the case authorities folder, there is a copy of the Rankine judgement - I'm presuming that they're going to rely on this for the "enforcement" definition (i.e. starting a claim isn't "enforcement"). Am I right in thinking that it's only a persuasive case, rather than a binding one - since my case and the Rankines' are completely different?

 

Spot on. There's a thread on Rankine somewhere...

[mcuth]

This is supported by the Information Commissioners Office's guidance on filing defaults with the CRA's;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf

 

Perfect - thanks mate, hadn't even thought about the ICO's guidance

 

I'd also suggest that 6 months is not an "adequate time" to allow you to comply with a DN - it seems very lenient, to the point of being unreasonable;

 

Well, it's only 4 months, but absolutely agree - especially if the regulatory requirement to comply is 10 days (as it was then)

 

Spot on. There's a thread on Rankine somewhere...

 

Yeah, I've found the big one again - will have to wade through that tonight....

 

Cheers

Michael

[citizenB]

Good luck for tomorrow mcuth

[The GodMother]

Mcuth.

 

I would just like to wish u luck.

 

GM

[mcuth]

Thanks guys - am gonna give it my best shot, but have nothing to lose really.... fingers crossed!

 

Cheers

Michael

[N.P]

Good look Michael,

 

We`re all behind you on this one.

 

I`m expecting a claim form from Lloyds any day now. I hope it`s after Christmas or that will really miff me off

 

 

 

N.P

[underdog13]

Best of luck, Michael:)

[mcuth]

Good look Michael,

 

We`re all behind you on this one.

 

Thanks Am just reading their skeleton and it seems pretty good. Nervous doesn't quite cover it....

 

I`m expecting a claim form from Lloyds any day now. I hope it`s after Christmas or that will really miff me off

 

Ouch - yeah, hope they hold off til next year

 

Best of luck, Michael:)

 

Thanks

 

BTW:

10. The parties shall make reasonable efforts to agree the contents of a trial bundle, to include all materials relied upon including a case summary and the skeleton arguments and authorities suppliedpursuant to this Order, and the Solicitors for the Claiamnt's [sic] shall produce such a paginated bundle and serve it on the Defendant by 4pm on the 3rd November 2008. The trial bundle shall be filed with the Court with sufficient copies for the Judge and any witness by 4pm on the 10th November 2008.

 

This was changed to 17th November after the Court's order, but their skeleton is dated 20th November!

 

What's interesting here is that in their skeleton they're making a bit of a deal out of how "deemed service" came into play for my Witness statement (I sent it by special delivery so it arrived on the day of the revised deadline, but they're saying "deemed service" meant it was received after the deadline), but then haven't complied with the order revising their bundle deadline to 17th November....

 

Cheers

Michael

[mcuth]

Well, I'm back somewhat earlier than I expected.

 

I ended up settling with them via a Tomlin order - can't tell you what for as that's confidential, but it saved a full day in court with a judge who (as he revealed after we said we'd settled) was unlikely to side with me.

 

So, a bit deflated, but life goes on... will be back with a full account of events later, but thanks for all the support anyway.

 

Cheers

Michael

[underdog13]

So disappointed for you, Michael - what is the matter with these judges?!?

[citizenB]

Sorry to hear that it didnt go the way you wanted. I thought you had a very strong argument.

[mcuth]

Thanks folks - wasn't the way I wanted it to go, but I guess you could say that I bottled it really...

Ok, well I do remember saying that I'd update the thread with what happened, and I've been a bit slack on that - so, over a week later, here you go

 

I'd received the bundle on Tuesday and didn't have a chance to look through until Thursday night. I found their skeleton argument while I was looking through the bundle, and it was damn good - unfortunately given the above I didn't have a massive amount of time to prepare a response, so was pretty nervous from that point of view anyway.

 

I got to Court at around 0945hrs, hearing was listed for 1000hrs and to go on all day. Met the solicitor for LTSB and had a bit of a chat about the way things would be scheduled for the day (nice chap, we'd been amiable enough at the previous hearing and that continued) - he'd brought along another guy from SC&M and 2 witnesses.

 

Well, 1000hrs came & went, as did 1015hrs....1030hrs and we were called into see the DJ. Despite LTSB's solicitor phoning the Court to make sure they had a copy of Goode and that the DJ would get plenty of reading time for the weighty skeleton, neither had been planned in properly. The DJ got the bundle at 1700hrs the night before and had spent most of the morning trying to read the bundle and also hunting round to get a copy of Goode! Also, the DJ informed me that he was a LTSB customer in case that had any impact on my case.

 

We were duly informed that the DJ needed some reading time - LTSB's solicitor recommended that the DJ read the skeleton, and I recommended that he read my witness statement. The DJ had had a quick scan over the skeleton and suggested that it wasn't a Fast Track case, but perhaps even Multi-Track which would need an adjournment (not too chuffed at that)! He was minded to strongly suggest that we come to an arrangement while his reading time was taken.

 

So, at about 1140hrs we duly filed out of the room - LTSB's solicitor wasn't too happy that the DJ hadn't done the reading, maybe suggesting that the DJ didn't want to deal with a complex case on a Friday, especially as we were now running very late and hadn't even started the arguments. Of course, he was insistent that he had a very strong case and wasn't prepared to concede - likewise I told him that I thought I had a strong argument too.

 

I went outside to smoke and decided that the day was likely to be a very long one, and the LTSB skeleton was very very good, so I'd have a completely uphill battle. I went back in and had a coffee with LTSB's solicitor and decided that I wanted to settle - I came up with a deal that I thought fairly reflected what I wanted, and it was accepted. A draft Tomlin order drawn up & signed by us both, and we went back in to advise the DJ that we'd come to agreement.

 

The DJ advised that the settlement was a good decision by myself as I'd have an uphill battle - summing up that basically I'd had the money and should pay it back (a bit of a telling off really) - though he'd be more minded to be on my side if I'd suffered prejudice and owed more than I should've done due to a CCA breach. Anyway, he did say that every January the DJs get to go on "refresher" courses and he's requested the CCA as his chosen one - so I suppose that's a bit of a positive....

 

Shook hands with the LTSB & SC&M chaps afterwards - we'd shared a few chats & jokes during the morning, and it was nice that everything was amiable. All in all, not a scary experience, but intimidating and I'm disappointed I didn't have the guts to see it through to the bitter end - still, there's a settlement agreement that I'm happy enough with.

 

Cheers

Michael

[car2403]

Shocking.

 

The Judge lottery strikes again. Another Judge, with a slightly less favourable view of the Bank, probably would have decided differently.

 

This should be a warning shot to those taking on proceedings in Court - no matter how well prepared you are, no matter how much you feel you have a good case that will stand up, there is always the room for things to turn against you.

 

Having said all that, there is always the possibility of appeal, should things go in the wrong direction, so be careful what you are agreeing to in Tomlin Orders as you won't be able to appeal. IMHO, I would have went on with the case, as you would have had a chance to argue against reallocation, (which I did in my O2 thread) and then concede should that go against you. It did sound like the Judge had made him mind up before you even sat down, though, sadly.

[underdog13]

Michael,

 

did you actually see the original copy of their agreement?

 

It seems odd to me that the T&Cs in your second scan (which I'm assuming they are asserting was on the reverse of the application form, in order to be within the 4 corners of the agreement), would state 'bank copy'. You don't normally have a bank copy without having a customer copy - I've never seen an application form set out this way before.

[mcuth]

Shocking.

 

The Judge lottery strikes again. Another Judge, with a slightly less favourable view of the Bank, probably would have decided differently.

 

This should be a warning shot to those taking on proceedings in Court - no matter how well prepared you are, no matter how much you feel you have a good case that will stand up, there is always the room for things to turn against you.

 

Having said all that, there is always the possibility of appeal, should things go in the wrong direction, so be careful what you are agreeing to in Tomlin Orders as you won't be able to appeal. IMHO, I would have went on with the case, as you would have had a chance to argue against reallocation, (which I did in my O2 thread) and then concede should that go against you. It did sound like the Judge had made him mind up before you even sat down, though, sadly.

 

Indeed - I think I actually got away lightly by settling in the end - and I really don't have the stomach for an appeal (I've got an MCE battle to fight next). Besides, it won't matter in the long term for reasons I'll disclose much later

 

Re the re-allocation bit, I can't see how a full day hearing would sit in the SCT - I thought SCT hearings were only allowed a maximum of like 4 hours or something?

 

did you actually see the original copy of their agreement?

 

Nope - they didn't have the original. Originally I thought this was a major plus point, but I read & re-read their arguments regarding submitting copies as evidence and cross-referenced it with the Civil Evidence Act, and it seems that as long as the copies form part of the records of the business, that's ok. Plus, one of their witnesses was the guy that orignally approved the card & "signed" the agreement!

 

I'm pretty sure that the actual Ts&Cs that they were relying on (not the first lot they submitted) were the correct ones from the back of the document.

 

Cheers

Michael

[underdog13]

Thanks for your reply, Michael. It's unbelieveable that they can get away with this. They can draft up any rubbish, swear it was the same as the original, produce any one of their employees who will swear he witnessed all and the courts swallow it!!! I think they are committing forgery on a massive scale and getting away with it.

[car2403]

Re the re-allocation bit, I can't see how a full day hearing would sit in the SCT - I thought SCT hearings were only allowed a maximum of like 4 hours or something?

 

Nope - allocation is on complexity of the case and the amount involved. I have seen SCT claims lasting a whole day. I think there is a presumption that anything more than 8 hours would be off the SCT, though, because of the resources involved.

[mcuth]

Thanks for your reply, Michael. It's unbelieveable that they can get away with this. They can draft up any rubbish, swear it was the same as the original, produce any one of their employees who will swear he witnessed all and the courts swallow it!!! I think they are committing forgery on a massive scale and getting away with it.

 

I don't think it was a forgery.

 

Nope - allocation is on complexity of the case and the amount involved. I have seen SCT claims lasting a whole day. I think there is a presumption that anything more than 8 hours would be off the SCT, though, because of the resources involved.

 

That was the whole reason they got back to FT anyway - complexity. I found it really hard to argue against it too...oh well!

 

Cheers

Michael

[underdog13]

I don't think it was a forgery.

 

You think the second page they produced detailing the prescribed terms was genuinely the back of the original application form?