TBI and Liverpool Victoria

[cups]

Hi

 

I have been dealing with TBI for some time now after LV paased on a credit card debt without telling me. I have found them very aggressive.

 

In January I sent a CCA and then heard nothing until the end of March when they sent another letter asking for a review. I resent the CCA and reminded them of it and that I had the proof of posting etc sdo know that they had got the original letter.

 

They have now twice sent me an illegible form that doesn't have all of the prescribed terms. It is a copy and looks quite suspect in it's format as the only thing that is mine is the signature. The signature looks as though it has been placed in the box. What I have also noticed is that the 'credit card number' above the signature of the staff person at LV is not mine! I have rechecked it and it is quite obvious that they have done what i think and sent me a form that is not mine.

 

I am sending a S.A.R to them today. I am going to leave my suspicions of their forgery for the time being and will wait to see what they say next.

 

Has anyone else had this problem or is there anyone that thinks I should do anything else.

 

Regards

[spamheed]

this is not as unusual as it should be.

 

the general consensus, is never send your signature as it "may" end up on a document that you have no knowledge of.

 

they will have to produce the original agreement should they end up taking you to court, without the original, you have no case to answer.

[42man]

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the 26th July 2007.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

 

 

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else. I would also like to note that as from the (12+2 working days + 30 calendar days) it becomes a criminal offence.

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies including any defaults. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

Please also note that if I suspect any tampering, fraud or indeed if I suspect you are attempting to pass off somebody else's documentation as being mine, I will have no hesitation in informing the police

[cups]

Thanks for your help. I will send the letter as suggested tmrw. I have already sent the SAR and I'll see what that throws up. The more I look at it the more it seems that they have copied my signature onto a form and sent it to me.

 

When I originally made the CCA request they never got back to me, which for that company is very unusual as they are pretty aggressive and persistent which just heightens my suspicions with regard to the form.

 

I'll update when I get a response,,

 

Cups

[cups]

Hi

 

I sent off my SAR to TBI and got a reply today.

 

They have sent me statements from October 2004, I got into problems prior to that (2002) so should they send me all of those as well?

 

They have sent me all their 'screen shots' from when they have had the account but nothing from LV, do I have to go to LV seperately or should they get that for me?

 

Also they did have my original request from January for the CCA but just never bothered to respond to me.

 

They have again sent me a virtually illegible copy of what they say is my Credit Agreement. It only has my signature in a box but does not have my writing on it anywhere else. The problem with the number being different, that is the number above the employees signature, is that the card number and account number can be different? Is that possible?

 

I have rummaged around and found the original agreement that LV sent me, and it is different to what TBI have sent me. Although a lot is the same it is all laid out differently and the monthly rate of APR is different. On the original agreement it is 'charged at a daily basis of 0.482% per month', and on the one TBI sent me it is shown as 0.48%. Is that right?

 

In none of the two agreements I have does it give a credit limit at all, it says 'we will set and give you notice of your credit limit from time to time'. Again I don't think that is right, unless anyone thinks differently.

 

They have threatened legal action for a charging order if I don't come to a new arrangement. I am happy to go to court if I can win on the basis of the agreement being unenforceable which I think it is?

 

I would be immensely grateful for any advice.

 

Cups:D

[cups]

Can someone tell me what they think about this.

 

I am not sure what to do about TBI?

 

Is it worth sending an SAR to Liverpool Victoria as well to see what they have,,or should TBI have sent me everything,,,even the LV stuff.

 

I am worried that after six years of this crap that finally one of the DCA's will get a charge over my house! I am not averse to paying but the majority of the debt is interest etc and they have been less that halpful. TBI have been particularly agressive,,

 

Any advice would be much appreciated

[cups]

Hi

 

Could someone tell me what they think on this one as I am very confused,,

 

I am going to SAR LV and see what they have as the 'agreement' doesn't make any sense and doesn't look complete.

 

Any advice would be appreciated,,

 

[cups]

I have sent off a SAR to LV today and told TBI to give me time to get their info,,

 

Can anyone tell me if there is anything else I can do..please help!!

[cups]

Hi

 

Please could someone tell me what they think about TBI and a CCA request. I have previously started a post but no one looked at it, so please bear with me.

 

TBI have had my old Liverpool Victoria credit card account for a couple of years now. They are a very aggressive team and prior to finding the CAG they made my life a misery.

 

Back in January 2008 after a letter of review, you know the 'we want more' letter I sent them a CCA request which they did not respond to. I now know that they did get it as it is shown on the stuff they sent me after I SAR'd them!

 

Anyway last month the CCA request was sent off again and they sent me a totally illegible 'copy of a credit agreement'. I wrote back and then they sent me another one that was not much better saying that is the best we can do.

 

On the second occasion they sent a second sheet that has details on it about the card, interest etc that was not with the first letter. The alleged credit agreement has none of my personal details but only my signature which doesn't look right! Having examined it closely it looks like the second page of an original application form, it actually says application form at the top of the letter!

 

I have looked through my own corries and I have found the original copy of the second sheet which on the face of it looks the same but it has a different front to it. They seem to have sent me a part of an application form and then some terms. these are definitely seperate sheets but they have sent it to look like it is the front and back of one form. Also the 'terms' oart of waht they sent me has a number on it with a bar code and it is not the same as I have in my possession,,

 

Also I have signed it on the 30/05/2000 and they signed it on the 02/06/2000. Do they not also have to prove that they sent a copy of this alleged agreement to me with proof of postage etc?

 

I did SAR TBI and they quickly returned a lot of paperwork, back in Feb 2007 they are showing a default fee of £50 but they have no record of a default within the records they sent and they have never issued me with a default notice.

 

I wrote back asking for time to get info from Liv Vic as I wanted to SAR them as well but TBI say they want a response by the 23rd May otherwise they will start court action.

 

I am not trying to get out of the debt but I would like to make sure that they are not trying to have me over like a lot of these DCA's do to people.

 

I have tried to find a way to put stuff up on the page but I do not have a scanner etc, also the quality of the 'agreement is so bad that is is barely legible.

 

Please could anyone tell me what i should do, I don't want to just cave in as I think they have not given me the correct information.

 

Many Thanks

 

Cups

[citizenB]

Hi cups,

 

It might have been better if you had stayed with the one thread

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/143830-tbi-liverpool-victoria.html

 

That way people can offer advice in the one place.

 

If the document is as illegible as you say and there are no links between the two pieces of paper you have received then whoever takes you to court must at that time show a legible agreement. So they COULD be just trying to frighten you.

 

If a mod/site helper can get this thread merged with your other one..keep it updated so anyone looking in has information in one place.

 

Did you write back to TBI saying that they have failed to provide you with a legible document. I think I have seen a letter somewhere you can send them.. dont panic.. I will be back as soon as find it.

[citizenB]

Ok, well I have searched and I cant find the letter I am looking for.

 

You should write back saying something along the lines of:

 

With reference to your letter dated xx xx 2008..

 

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

My request remains outstanding. All you have sent is a document which is illegible and therefore not compliant with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557), your attention is drawn to regulation 2 (1) which sets out how copy documents must be presented.

Therefore my request still remains outstanding. If you are unable to supply with a legible copy because none exists, please confirm this in writing.

Etc, etc,

HTH

[cups]

Thanks for the reply,,I only put another thread in as I had had no replies and thought the word 'help' in the title might get a response as I was getting desperate,,

 

I will send another letter as you suggested and then also add in about the o/standing SAR request to LV which they should give me time to get according to the OFT guidelines.

 

Does anyone think i should also say that I believe the forms do not match each other, they quite clearly look different sizes on the copy?

 

Cups

[cups]

Hi

 

I have sent TBI off a letter today, I have put in the suggestion about legibility, OFT guidelines about accounts in dispute, mentioned about the fact that both of the letters don't match so are obviously from different forms etc.

 

Also I found a bit of advice from Nicklea about cancellation terms etc, and a stated case that he mentioned in another thread and hopefully that should keep them going.

 

LV have sent a DPA from which requires copies of bills etc. I am tempted to send them on copies that are blanked out of any useful info,,

 

Cups

[citizenB]

Hi

 

I have sent TBI off a letter today, I have put in the suggestion about legibility, OFT guidelines about accounts in dispute, mentioned about the fact that both of the letters don't match so are obviously from different forms etc.

 

Also I found a bit of advice from Nicklea about cancellation terms etc, and a stated case that he mentioned in another thread and hopefully that should keep them going.

 

LV have sent a Data Protection Act from which requires copies of bills etc. I am tempted to send them on copies that are blanked out of any useful info,,

 

Cups

 

Well that should surely keep them too busy to be writing any more silly letters to you for a while .

[cups]

Hi can anyone tell me what they think on TBI's latest response.

 

After my last letter TBI responded by saying that my points were null and void. My complaint was not upheld and that I could go to the FOS, which is what I am doing.

 

I wrote a further short letter asking them to confirm that they supplioed me wit everything that i asked for on my SAR request and asked that they confirm that they had the originals of the documents that they had sent in their entirety. Quite clearly what they sent were two documents,,not complete in any way.

 

They have just replied with a strange letter saying they won't neter into any more correspondence with me and ''at no time has this company advised you that the copy of the agreement you have been provided with, is in it's original format. This is not a requirement of the Consumer Credit Act.

 

Now i have read about the gebre of 'reconstituted agreements being supplied to people but I also realise that this is often done because the 'original' is not held or does not conform to the legislation.

 

I really don't know what to think. i have had no copies of defaults or anything as I think that they have never been sent etc. I am very confused..

 

Any advice would be appreciated,,

 

Cups:oops:

jo

[citizenB]

Ok, well the letter with the statement "we wont enter into any more correspondence with you on this matter" is their Final Response and you can now take your complaint to the Financial Ombudsman Services or the Information Commisioner as they have clearly failed to provide you with the document you have requested.

 

HTH

[cups]

Thanks a lot for the advice.

 

I am in the process of posting this off over the next few days.

 

I just wonder why they would send what are two different docs to me? I can only think that it is to try and make me think that they have all the req'd documentation. I have read other threads about TBI and it would appear that the unreadable docs bit is a regular ploy of theirs to try and fool people who challenge their methods or ask for what they are legally entitled to!

 

If they have everything but won't give it then I will take my chance with it as I have everything to gain and nothing to lose,,the thought of whatever else they may do does not phase me at all,,

 

Cups

[citizenB]

I am not sure why they have done this either cups. I appreciate you arent able to scan your documents in but it really would be a big help if you could find a say somehow.

 

I think one good thing is if they havent sent you anything better in your S.A.R package from your CCA request then they would find it very difficult to argue their case in court.

[cups]

Hi

 

I have a court case now coming up with this lot soon. they say that they don't have the original and that they now say that what they have given me is a true copy of the original,,there is nothing on it with my details at all.

 

They have scanned my signature onto an exsisting form,,l know that because they have scanned it onto a form that was sent to their fax number 4 years before l ever applied for the card.

 

I cannot believe that they think they will get away with it, l would be happy to pay of they ever treated me properly but they are vultures and gave me nothing but hassle when my Mum was ill with cancer.

 

I think in light of Carey they cannot even begin to think that they can get away with it,,but l have lost in the Judge lottery before,,

 

Alse the DN was defective and shows that they have added a default fee of £50 to it,,is this ok,,l am not sure about the whole default fee,

 

Any advice would be great,,

 

Cuips

[cups]

Hi

 

I have just got a copy of their skeleton argument,,

 

1.The credit card agreement is not a true copy,,they say this is wrong and is for the court to decide. I have the first copy that they sent me which is dated 4 years before l ever applied for the card and only has my signature on it,,nothing else, no nmae or anything. They now accept that they took three months to send this to me but cannot say why,,may be because they were tryiong to scan my signature in to it?

 

2. The agreement does not comply with Sec 60 and 61, they say that the absence of my details does not make it unenforceable. The prescribed terms are there ???It cannot be read properly as it is virtually illeginble.

 

3. Claimant failed to produce copy of agreement within 12 days, app this is true but does not render the agreement unenforceable.

 

4. No DN was received by me, they say that l concede that l did get a DN,,no l don't..the DN did not give 14 days to remedy the breach, included a DN fee and bank charged of PPI from the OC. They say that l received it on or about the date it had on it???

 

5. DN not valid,,l app now concede that it contained the necessary information,,no l don't,,l pointed out the probs with it at the first hearing,,got written down to what l said.

 

App in summary my defence is a bit technical but once unravelled has NO MERIT,,

 

Any ideas,,they say that they don't have the original, that's because there isn't one,,they have made it up and l have the fax copy of the first copy they sent me,,and now everything that they send does not have the date on it on the top and they have ignored this for 2 years since they started this case at court,,

 

CUPS

[citizenB]

Responding to S.O.S.

 

Cups, this is all a bit of a muddle.

 

I cant see where you have posted that this had got to the court stage, what was in the Particulars of Claim, what type of defence you put in, how you have approached obtaining documents by way of CPR or your AQ.

 

Did you not receive a Default Notice and how would they assume that you are conceding that it was valid.

 

We really need more information and soon if you are due in court on Friday.

[cups]

Hi

 

The POCs were pretty standard, that I entered in to an agreement with LV for a credit card, spent money and then defaulted.

 

LV sold this to TBI in 2006 and I paid them for about a year before l found the CAG.

 

I requested my CCA in January 2008 and they ignored my request, they eventually responded in April 2008, after they pretended that they never got my first request but it is in their 'client notes'.

 

What they sent was a single sheet that said something about being an app for a card, it has none opf my details on it at all, no name, address or anything. The first one they sent was a single sheet that had a fax headre at the top that showed that it had ben sent to them in 1996, four years before l ever made any application. It has some prescribed terms but it is a very poor copy.

 

When l asked for another more clear copy, l got the same again, this time it has no date or fax header on it and it was accompanied by a second sheet that looks like T and Cs, again not clear.

 

They say they dn'd me in Febriary 2007, they sent it on the 8th and gave to the 22nd to remedy. They have a note of me calling on the 12th Feb,,re a letter they sent me, but do not say what l am talking about in their notes. I do not recall the DN and they cannot prove they sent it. I think it is fair to say if they try to convince the DJ that l got the DN with no proof, l only got it with 10 days to remedy the fault anyway? The DN also included a fee? I cannot see how they can do that.

 

Letters went back and forth and they issued proceedings in August 2008, it has taken so long for no real reason?

 

They totally ignore the fact that l have mentioned several times the issue of the date on the first agrrement and say that tye ndon't require my details on any agreement,, but am l right in thinking that Carey states that it has to have pertsonal details on it to be an agreement. I can honestly say that l would never have signed anything that didn't have my name on it.

 

I think that it is quite clear that they have taken their time in responding to my original CCA request because they were trying to decide what to do ,,they were obviously trying to scan my signature in to the boxes!!!

 

The OC can provide the copy that they have supplied but nothing else. The second page of T and Cs LV do not have,,

 

I have a letter from TBI stating back in 2008 that @at no time have they ever told me that the copy agreement they have supplied me is in it's original format'. yet their WS says that it is in it's original format..

 

I keep thinking that the DJ will feel sufficiently sceptical that he will not order enforcement,,but you never know..

 

From day one they say they have never had the original and cannot get it,,

 

I have defended on the basis of no efffective DN and no original agreement, so you cannot order enforcement..

 

I think that l have the right to see the original on the basis of th fax header with the date of 1996 on it..

 

Interested to hear what anyone thinks,,

 

Cups

[cups]

HI

 

I have nto go to work, but will be back later on ,,

 

Any thoughts would be appreciated,

 

Cups

[citizenB]

Default Notice. I dont suppose you kept the envelope ?

 

8th February 2007 was a Thursday

 

So the earliest you could have received it by 1st class post would have been Monday 12th February (2 business days) if it was posted 2nd class or UK Mail then that would be the 14th February for service. That doesnt give you the full 14 clear days to remedy. So you need to know what type of postage they slapped on the DN.

 

If you spoke to them on the 12th in respect of this then you have I would suspect, confirmed receipt of it on the 12th Which still only allowed you 10 days to remedy.

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

firstly,

 

 

Parties to agreement

 

2

 

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

 

 

next,

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

The dates in the quote boxes below were specific to the original poster so you should work out your own dates for the Default Notice you have.

 

BRW - Are you going to court – Default Notice – Must read

http://www.consumeractiongroup.co.uk/forum/show-post/post-2832151.html

Hello E!

 

The above s87(1) Default Notice, assuming they sent it via normal Post, is clearly defective because it has not allowed you the 14 clear days that Parliament demands must be the case.

 

01/09/2009 is a Monday, so if we assume they posted it via 1st Class Post, and did actually Post it on the Monday, then it works out like this (if they cannot prove they Posted via 1st Class, or you have the Envelope and that shows 2nd Class or worse, then 2nd Class will have to be assumed by the Court which makes it even worse for them, see the second table of dates below this one):

s87(1) Default Notice if Posted via 1st Class Post

 

01/09/2009 Mon = s87(1) DN Date and Date of Posting 1st Class (if they can prove it).

02/09/2009 Tue = DN in transit +1 day.

03/02/2009 Wed = Date of Service (+2 days from Posting).

04/09/2009 Thur = 1st Clear Day

05/09/2009 Fri = 2nd Clear Day

06/09/2009 Sat = 3rd Clear Day

07/09/2009 Sun = 4th Clear Day

08/09/2009 Mon = 5th Clear Day

09/09/2009 Tue = 6th Clear Day

10/09/2009 Wed = 7th Clear Day

11/09/2009 Thur = 8th Clear Day

12/09/2009 Fri = 9th Clear Day

13/09/2009 Sat = 10th Clear Day

14/09/2009 Sun = 11th Clear Day

15/09/2009 Mon = 12th Clear Day

16/09/2009 Tue = 13th Clear Day

17/09/2009 Wed = 14th Clear Day

18/09/2009 Thur = The earliest day they can demand payment.

 

Thus, 18/09/2009 is the earliest date they should have stated on the above Notice, provided they sent it on the same day as it was issued, and they can prove it was Posted via 1st Class. If not, then move on to the 2nd Class schedule below:

s87(1) Default Notice if Posted via 2nd Class Post

 

01/09/2009 Mon = s87(1) DN Date and Date of Posting 2nd Class.

02/09/2009 Tue = DN in transit +1 day.

03/02/2009 Wed = DN in transit +2 days.

04/09/2009 Thur = DN in transit +3 days.

05/09/2009 Fri = Date of Service (+4 days from Posting).

06/09/2009 Sat = 1st Clear Day

07/09/2009 Sun = 2nd Clear Day

08/09/2009 Mon = 3rd Clear Day

09/09/2009 Tue = 4th Clear Day

10/09/2009 Wed = 5th Clear Day

11/09/2009 Thur = 6th Clear Day

12/09/2009 Fri = 7th Clear Day

13/09/2009 Sat = 8th Clear Day

14/09/2009 Sun = 9th Clear Day

15/09/2009 Mon = 10th Clear Day

16/09/2009 Tue = 11th Clear Day

17/09/2009 Wed = 12th Clear Day

18/09/2009 Thur = 13th Clear Day

19/09/2009 Fri = 14th Clear Day

20/09/2009 Sat = The earliest day they can demand payment.

 

Thus, 20/09/2009 is the earliest date they should have stated on the above Notice, provided they sent it on the same day as it was issued, and they can't prove it was Posted via 1st Class, or you have the original Envelope that proves 2nd Class Post was used, or you have some other evidence that the Envelope was not Posted on the same day as it was issued (such as a Franking Date Mark that says 2nd September 2009 or later, in which case, the clock starts ticking later).

 

The reason I have typed the above, is so that you can see there is no way you have been allowed the 14 clear days if this Notice was sent to you via Post.

 

 

Your Strongest Argument

 

That defective s87(1) Default Notice is your strongest Application argument so, it's the one you hit them with first and hardest. Don't get bogged down saying too much else, otherwise you will just soften the impact of your main point. To ram that home, you must know the issues backwards, and be willing and able to make it clear that there can be no leeway on this issue.

 

This has nothing whatsoever to do with morals, so do not let the Judge try to get past this by saying daft things like...

...were you going to pay it?

 

...you've spent it so you must pay it back.

 

That is not for the Judge to rule upon if the Notice is defective. The acid test is the Notice itself. Was it set out in the Prescribed form using the Prescribed words, did it accurately state what you had done wrong in relation to the Terms of the Agreement, did it accurately state the exact default amount they were entitled to demand that you pay and did the Notice give you 14 clear days?

 

If the answers to any of the above are no, then the Notice is defective, and the Claimant loses any right to enjoy s87 benefits. If the Agreement is also Terminated, either by a Termination Letter because they have taken enforcement action not otherwise allowed unless they had secured s87 benefits, then that Agreement is ended, and they cannot thereafter issue an effective s87(1) Default Notice.

 

 

Further Reading

 

You must read the Default Notice Thread by Surfaceagentx20, and you must read this case and include it with your Skeleton Argument (and send the enemy a copy well ahead of Court):

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998 )

 

Note the Judge's comments about accuracy, i.e. if they ask for something to which they are not entitled then, in his Judgment, the Notice is defective.

 

Also, note that the Judge in that case does not say that a Court can overlook anything if it is de minimis, he only says they might overlook something...i.e. if the matter were very small. I would suggest that would be something like missing a full stop, or a minor issue like that.

 

 

Fighting a de minimis arugument:

• Failing to set the Notice out in the Prescribed way, using the Prescribed Wording is not de minimis.
  

• Failing to state what you have done wrong with accuracy in order that this fault can be remedied is not de minimis.
  

• Failing to state the exact default sum you need to pay in order to remedy the default is not de minimis.
  

• Failing to allow the Statutory number of clear days that Parliament demands that you must be allowed is not de minimis.
  

The Court cannot allow for any such errors, because there is nothing in either the Act nor the supporting Statute that permits any leeway. The phrase de minimis is not mentioned anywhere that matters. In any event, all this phrase means is a Court can overlook a very small matter that is of little concern.

 

If the Judge or the enemy try to use a de minimis argument, then ask them to direct you to the area of the Law that mentions they can do this? i.e. just so that you can direct people to this point later when the Appeal comes up!

 

But, seriously, get your ahead around this, and realise that there is no leeway if they get the Notice wrong. It cannot be fixed, unless they are entitled to issue an effective Notice, and to do that, the Agreement has to be live, which it cannot be if they have taken you to Court to demand early payment.

 

 

The Right to Demand Early Payment Depends on s87

 

The right to demand early payment is only available to them if they are already in possession of an effective s87(1) Default Notice that you failed to remedy once the Statutory time had elapsed. Without that, it's a Catch 22 situation for them, because they need an effective Notice to use s87 and, if they are found to have used s87 without an effective Notice, then they have clearly Terminated the Agreement via unlawful Rescission of Contract. That's because they have demanded something from you to which they were not entitled, so have shot themselves in the foot because it is then they who have broken the Agreement by doing this.

 

 

Secondary Arguments

 

Once you have banged home the above issue, then of course the next main points you can hit them with is their poorly pleaded Particulars of Claim (read CPR so that you understand CPR 16), and their monstrous attempt to try and make you pay s69 County Courts Act 1984 8% Simple interest in relation to a Claim that is based upon a Regulated Agreement.

 

Take a copy of this, and include it in your Skeleton [note s2(3)(a)]:

 

The County Courts (Interest on Judgment Debts) Order 1991

 

Minor Arguments

 

By all means mention the way they have behaved generally, but keep it short and sweet, and use this mainly to show how unreasonable they have been, and how Court could have been avoided had they acted more decently.

 

 

P.P.P.P.P.P.P.

 

Remember the above! Proper Prior Planning Prevents P*** Poor Performance!

 

Get your notes ready, then spend some time reading out aloud, from memory, what you want to say. If you stumble, then make some brief notes to help yourself. Then try again, and again, and again.

 

If you keep getting it wrong, then by all means draft a speech, and tell the Judge you are a Litigant in Person, unfamiliar with speaking in Court, so would the Judge mind if you read out your speech from your pre-prepared notes. Stand up, speak clearly and slowly, and state your case that supports your Application.

 

Make sure your Court Bundle is next to you, and practice how you can turn to anything you might need to refer to, such as CCA s87, CCA s88, the Statute on Default Notices [Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 SI 1983-1561], the above Case that covers Default Notices, and anything else you think would be useful.

 

 

A Quick Self-Test

 

To test yourself, try working out answers and strong counters to the following questions and invalid statements:

• A Default Notice is not important, I can overlook that, what matters is the Agreement.
  

Point out that the proper execution of the Agreement is another matter, and does not affect the key issue over their loss of any right of action if they have failed to end the Agreement appropriately.

• The Notice is dated the 1st and they want payment by the 15th, that's over 14 days, is it not. What's your problem?
  

Point out that's not allowing 14 clear days, see the Tables above based on 1st and 2nd Class Post, explain the way 14 clear days must be allowed, and the consequences of getting it wrong because they lose all s87 benefits for all time.

• You clearly owed them money, are you denying that?
  

Point out that it is for the Claimant to prove that a properly executed Regulated Credit Agreement was made, and can be produced before the Court (CPR PD16 7.3), and then for the Claimant to prove they have secured a right of action to demand early payment of sums not otherwise due before they elected to end such an Agreement. Say you are not denying that an Agreement was made, but questioning if it was properly made, and if they have ended it in such a way that allows them to seek early payment of sums not otherwise due.

• Demanding early payment is not enforcement, and does not end the Agreement.
  

Point out that the recent McGuffick case, and the latest OFT guidelines confirm that demanding early payment is enforcement, and requires s87 benefits. Those benefits are only secured by following s87 and s88 to the letter. Taking such steps without s87 benefits, is a breach of the Agreement on the part of the Creditor and amounts to an unlawful rescission entitling you to a valid Claim for damages against them for ending the Agreement in this way

• The default sum is correct if they deduct the unlawful charges they have since offered to repay and/or have since repaid.
  

Point out that a bank is, or should be, in a position to get their figures right. Nobody would accept errors when checking their bank balance via ATM, so it's only reasonable that a bank should know, to the penny, what is owed at any one time. If they have made mistakes, or levied charges to which they were not entitled, then this destroys any credibility that the sum they claimed in the Notice was properly owing and due. The above Case makes it clear that demanding sums to which a bank is not entitled, will render any Notice defective on that basis alone.

• The Default Notice is headed correctly, and you must've known what it was about, so why should I not overlook these minor errors that you say exist.
  

Point out that the wording of a Notice is Prescribed, there can be no room for error. If the Judge agrees that the Notice contains errors, and/or mistakes and/or has not allowed the Statutory time, then it can only be the case that the Notice is defective and must rule on that basis. To rule otherwise, needs to be supported, and say you cannot see anything in either the Act or supporting Statute that permits defects in a Notice to be overlooked. Direct the Judge to Swain...and have ready, read out aloud, some of the best and hardest hitting quotes from that Case.

 

 

So, start asking similar questions, and start thinking how you would counter them. Then go back and re-word your main opening statement so that you try to cover such issues before the Judge starts asking them!

 

The trick is to go in hard from the outset, and leave the Judge no sensible option but to agree with you! But do be ready to answer any questions, and field any fast balls the Judge shoots at you to probe any gaps in your Application's verbal opening statement on the day.

 

If you can spot a problem today, you can bet the Judge will spot it on the day. So keep going over this, and keep refining your line of attack until you have covered all the key issues. Then condense it so the Judge does not fall asleep while you read it all out!

 

I do hope this helps.

 

Cheers,

BRW

 

In respect of the rest of their skeleton, you need to produce one for yourself, trashing all of their points.... HTH

[cups]

Hi

 

Did PM you with the update,,

 

Your help is much appreciated, as you can tell the date is now put back for a while.

 

I do not have the envelope for the DN. I am quite sure that the call on the 12th was about it,,either way as l have already told them it doesn't give enough time to remedy the fault.

 

I am going to get your advice,,questions etc all done,,l have already stared on it.

 

Will post up soon some more points,,l think their derisery attitude shows how bad a DCA they are,,

 

Cups