Lloyds v Me

[steven4064]

Are you having one?

 

The only thing that will be discussed is what track to allocate the case to and how much time to allow - take everything, you probably won't need it but the thing you don't take will be what you need

[Viano]

Hi Steven,

 

I was concerned that I'd had no communications ref witness statement and disclosure list etc so I phoned the court and was told that next weeks hearing was an allocation hearing! so as ever forewarned is forearmed.

 

The paperwork only states date & time to attend.

 

V

[steven4064]

If they try and discuss anything else, complain

[Viano]

O.K. - Are they likely to ?

[Viano]

And if so to whom.

[steven4064]

O.K. - Are they likely to ?

Probably not

And if so to whom.

to the judge

[Viano]

Thanks, I had to ask!

 

V

[Viano]

Learned advice wanted please.

 

In reply to my CPR 31.14 request I received a letter, I quote,

 

' We are wtiting to your letter dated ** *** **** requesting disclosure of documents under CPR rule 31.14. To deal firstly with disclosure of the credit agreement, we agree that this is a requirement of CPR PD 16 para 7.3. We have complied with this rule by attaching the relevant documents to the Amended Particulars of Claim, namely the "Application Form and Agreement" signed by yourself, the "Lloyds TSB Bank Credit Card Conditions" and the relevant card brochure which was serverd on you on the ** **** ****.

 

As to the question of further disclosure, this will be delt with in court on the ** ***. We will not be opposing disclosure and in fact will be asking the court to give the standard directions for disclosure and inspection. As to the points you raise in relation to CPR rule 31.14, the rule deals with inspection of documents, which follows disclosure.

 

If you have any questions in relation to law or procedure we suggest you seek legal advice.'

 

What now?

 

Points:-

1) The copy of the " Application & Agreement" is a microfische,

2) The "Terms & Conditions supplied were (are) on a completely different sheet, and not microfische.

3) I asked for a copy of the DN, although they say they sent one, I have never received one, and they don't appear to have, or admit to having a copy!-they DO say, in another document, 'It is not necessary for the Claimant to annex a copy of any default notice to the Particulars of Claim'.

 

As I ask-what now???

 

Viano

[citizenB]

I had a read through your thread .. this was a bit of a rollercoaster ride to get to this point wasnt it:)

 

If you have any questions in relation to law or procedure we suggest you seek legal advice.'

 

Seems to me they need to take their OWN advice here.

 

I think you do really have to bang on about the lack of the DN. It is a necessary part of the procedures before taking the final step re the court.

 

I think you were given information by 42man here (post 146) as to just how important the DN is and it amazes me that so many companies fall foul on this.

 

TBH, I dont really know what else there is for you to do. So I will flag your post up for someone on the site team with more experience:)

[Viano]

Hi cB,

 

Thanks for taking the time to look through the thread.

 

I have a 30 mins. hearing next week and am wondering about the validity of their answer to my CPR 31.14 request. They had 7 days to produce docs or copies for inspection. The letter above was their reply. Can I use this against them?

 

Yes, I agree about the DN, they do not admit to having a copy, can I assume that, although they say that they sent one, that with no DN (or copy) we can't examine it for validity therefore no case. I ask because as you may have seen earlier in the thread that they initially claimed for a different card, and that I also have a claim in for unlawful charges, and also had a ruck with them (LTSB) over another couple of accounts held with that bank, that may or may not be in default, so we don't know what the alleged DN is for.

 

I know that's as clear as mud, but if you read it a couple of times I think it makes sense.

 

Patience and advice will be well received.

 

Viano

[citizenB]

Hi cB,

 

Thanks for taking the time to look through the thread.

 

I have a 30 mins. hearing next week and am wondering about the validity of their answer to my CPR 31.14 request. They had 7 days to produce docs or copies for inspection. The letter above was their reply. Can I use this against them?

 

Absolutely, the idea of the CPR is to ensure a smooth as possible case for the DJ . All the niggly bits ironed out BEFOREHAND. You can point this out the Judge and say, "well I did try to get all the information"

 

Yes, I agree about the DN, they do not admit to having a copy, can I assume that, although they say that they sent one, that with no DN (or copy) we can't examine it for validity therefore no case. I ask because as you may have seen earlier in the thread that they initially claimed for a different card, and that I also have a claim in for unlawful charges, and also had a ruck with them (LTSB) over another couple of accounts held with that bank, that may or may not be in default, so we don't know what the alleged DN is for.

 

Yes, I saw that there was a bit of a muddle over the card types. IMHO, they must be put to strict proof that it was sent, how it was sent and the contents ie amount requested, was it in the prescribed format, did they allow the legally required time of 14 clear days, for which card number ?

I dont think it is sufficient for them to say "It would have been". They also cant fall back on the fact that they are a bank used to dealing with this kind of thing day in and day out. They have already screwed up with their first attempt on the POCs. Chances are at the very least they can say it was printed out on a specific day. That should surely be recorded. But after that what ??

 

I know that's as clear as mud, but if you read it a couple of times I think it makes sense.

 

Patience and advice will be well received.

 

Viano

 

HTH

[citizenB]

I dont know whether or not you have read this thread started by surfaceagentx20. It is quite possible where you got the idea for your CPR 31.14 request from in the first place.

 

This is the link to the thread

 

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

 

 

this is a link to Post 59 which might be of some help to you.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1771008.html

 

HTH

[42man]

Without going through 150 posts.....what did the POC's say ? did it state that a DN had been 'served' ?

[citizenB]

Humour me please, where can I find the bit about no copy of DN & what happens in Court if no copy of DN is produced.

 

I quote from their reply to my defence:

 

i It is denied that the Claimant failed to issue a Default Notice.

 

ii The records of the Claimant record that a Default Notice was sent to the Defendant on ** *** 2007.

 

iii It is denied that proof of receipt and/or delivery of the Default Notice

is required the Claimant served such a notice in accordance with the act

by addressing it to the Defendant. It is averred that notwithstanding

that postage alone constitutes service.

 

Your comments please

 

V

 

The ability to download has deserted me, but here it is-

 

Lloyds TSB Bank PLC

 

v

 

Viano

 

Amended Particulars of Claim

 

 

THE PARTIES

 

 

 

1. The Claimants are and were at all times Bankers carrying on business at their offices at 25 Gresham Street, London, and elsewhere.

 

 

 

2. The Defendant was at all material times a customer of the Claimant.

 

 

 

The APPLICATION

 

 

 

3. On the 11th February 2003 by signature of a document headed "Application Form and Agreement" the Defendant applied to the Bank for a credit token, namely a Lloyds TSB Bank plc Platinum Credit Card for the purpose of acquiring goods/services on credit (" the Application Form).

 

 

 

4. A copy of the front and reverse of the Application Form is annexed to this amended Particulars of Claim and is referred to for its full meaning and effect. In further particulars:

 

 

 

i) The Defendant indicated by ticking the appropriate boxes that he was applying for a Platinum credit card and that he already possessed a credit card with the Bank:

 

 

 

ii) By entering his existing credit card number in the relevant box the Defendant applied for his existing credit card balance to be transferred to any new credit card account:

 

 

 

iii) Under the heading Your Declaration and Authorisation" appeared the following text:

 

 

 

"...I apply for a Classic/Gold/Platinum card or any other card type that you may issue, on the terms overleaf and the full Conditions in the customer copy. I confirm that the details I have given on this form are correct and that I am over 18 years of age".

 

 

 

v) Immediately below that declaration the Defendant entered his signature in a prescribed box containing the text "This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms."

 

 

 

THE AGREEMENT

 

 

 

5. The Claimant accepted the Defendant's application and the contractual terms embodied in the Application Form and associated brochure within the meaning of section 189(4) of the Consumer Credit Act 1974 became the terms of the agreement between the Claimant and the Defendant ("the Agreement").

 

 

 

6. Pursuant to tnhe Agreement the Claimant opened a credit card account (" the Account") in the Defendants name under reference **** **** **** **** for the purpose of providing running-account credit associated with the Defendant's use of the credit token associated with that account.

 

 

 

7. The rear of the Agreement, overleaf from the part signed by the Defendant, was headed "Lloyds TSB Bank Credit Card Conditions-the Banks copy", followed by the words "CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974". The following material matters were stated thereafter:

 

 

 

i) In bold type was stated:-

 

 

 

"These are some of the legal Conditions for our Classic, Gold and Patinum credit cards. The full Conditions are set out in the section headed @Lloyds TSB Bank Credit Card Conditions-customer copy".

 

 

 

ii) Under a heading "Main Financial Particulars" appeared the prescribed terms relating to credit limit, repayments and interest charges. In relation to payments aws provided

 

 

 

"Your payments (see also 7)

 

 

 

* You must make at least the minimum payment every month till you clear your balance

 

 

 

* The minimum payment is the larger of £5 or 2% of your Ordinary Balance plus the larger of £5 or 2% of each Special Balance.

 

 

 

* We set the Payment Date - it is normally 25 days from the date of your statement but it may vary.

 

 

 

* Your statement shows the Payment Date and the Minimum Payment.

 

 

 

* We must receive cleared funds by the Payment Date".

 

 

 

8. Further terms were included in the "Credit Cards" brochure from which the Application Form was detached, which contained at pages 12 to 20 a document entitled "Lloyds TSB Bank Credit Card Conditions- customer copy". The Agreement embodied these non-prescribed terms and so far as is relevant:

 

 

 

i) Section 6 provided for the Bank to charge interest on the outstanding balance of the Account, the rate of which was given as one of the prescribed terms;

 

 

 

ii) Section 7 provided additional terms in relation to payments, including so as far as is relevant:

 

 

 

7. Payments

 

 

 

* You promise to make all payments on time. You must pay us even if you do not get a statement.

 

 

 

* You must pay over limits and arreas as soon as we ask or you are aware of them.

 

 

 

* Your balance must be repaid immediately if you die, are made bankrupt, or break this agreement."

 

 

 

9. A copy of the Credit Cards brochure identical to the one the Defendant completed is annexed to these amended Pariculars of Claim.

 

 

 

PERFORMANCE OF THE AGREEMENT

 

 

 

10. Pursuant to the Agreement the Bank issued a credit card to the Defendant, and the Defendant used the credit card to purchase goods and services and to obtain cash advances. On each occasion the Defendant used the credit card, the Bank advanced credit to him through the account.

 

 

 

11. The existing balance of the Defendants previous credit card was transferred to the account as a special balance.

 

 

 

BREACH OF THE AGREEMENT

 

 

 

12. In breach of the Agreement and the prescribed terms relating to payment the Defendant failed to make payments as required, as set out in the account statements which are annexed hereto. The Defendant also exceeded his credit limit:

 

 

 

13. In further particulars:

 

 

 

i) In February 2007 the Defendant failed to make his monthly payment and the monthly statement required an immediate payment of £268.00 and the remainder amount by the 9th March 2007 shown on that account statement;

 

 

 

ii) The Defendant failed to make payment and in March 2007 the monthly statement required an immediate payment of £565.00 and the remainder amount by the 10th April 2007 shown on that account statement;

 

 

 

iii) The Defendant failed to make payment and in April 2007 the monthly statement required an immediate payment of £865.00 and the remainder by the 8th May 2007 shown on that account statement,and exceeded his credit limit by £197.10;

 

 

 

iv) The Defendant failed to makepayment and in May 2007the monthly statement required an immediate payment of £1169.00 and the remainder amount by the 5th June 2007 shown on that account statement,and exceeded his credit limit by £394.69;

 

 

 

The account Information on the statement issued in May 2007 states "If you fail to pay £1169.00 immediately we will require you to repay the full balance. I you are unable to pay please contact us today". Any cards you have must be cut in half and returned".

 

 

 

CONCESSIONARY ARRANGEMENT

 

 

 

14. By an arrangement made between the Claimant and the Defendant in May 2007, the Claimant agreed to accept lower monthly repayments in the sum of £90.00 per month ("the Concessionary Arrangement). It was an implied term of the plan that if the Defendant failed to make those lower monthly repayments the Bank would be entitled toenforce the debt in full.

 

 

 

BREACH OF THE AGREEMENT

 

 

 

15. In breach of th Agreement the Defendant only paid 1 payment in accordance with the Concessionary Arrangement received on 21st May 2007, and failed to ensure that repayments were made on time, whether at the rate permitted by the Concessionary Argeement or at all, and/or failed and has continued to fail to repay the ammounts outstanding. In further particulars:

 

 

 

i) The Defendant failed to ensure that repayments were made pursuant to the Agreement and Consessionary Arrangement and failed otherwise the instalments due from February to April 2007, and from June to December 2007.

 

 

 

16. On the 24th August 2007 the Bank issued a Default Notice to the Defendant pursant to section 87(1) of the Consumer Credit Act 1974. By the Default Notice the Defendant was required topay the arreas of £160.00. The Defendant failed to remedy the breach.

 

 

 

DEBT COLLECTION

 

 

 

17. In October 2007 the monthly account statement issued to the Defendant advised:- "Your account is seriously overfdue and in view of this we have instucted a debt collection agent, MHA Collections. If you are unable to make the payment on this statement, you must phone them immediately on 0870 010 1977".

 

 

 

18. The Defendant failed to pay the required payment and on the 16th November 2007 the Claimant's Solicitors did issue a Formal Demand to the Defendant.

 

 

 

19. The Defendant has failed to discharge the debt and remains indebted to the Bank in the sum of £**,***.**, and the Bank Therefor claims the balance due under the Agreement.

 

 

 

20. Further the Claimants claim interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum on the ammount outstanding, until judgment or sooner payment.

 

 

 

AND the Claimant claims:

 

 

 

(1) The sum of £**,***.**

 

 

 

(2) Interest & costs

 

 

 

To the District Judge and to the Defendant.

 

 

 

This is followed by the statement of truth and dated 24th November 2008

 

 

 

 

Viano

 

 

 

 

 

 

42man, I have bought forward the amended POCs, in the first quote, the claimant is saying a DN was sent but they dont have a copy or record of it.

[42man]

Then bits of this will be useful too

 

I would like to suggest that, as a matter of course, we advise the user to go for a strike out under CPR 3.4(2)(a) in these cases.

 

The reasoning is simple:

 

Section 87(1) of the CCA 1974 says:

 

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also 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).

 

6. The 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[Viano]

Thanks chaps for the replies and re-posts.

 

I have just re-read 'Getting them to reveal...' I've got square eyes now!

 

Is it a legal requirement for them to comply with my CPR 31.14 request or do I just bang on about it at the (allocation) hearing? or should I file an N244. if so when.

 

Viano

[Viano]

Another question, does the letter,quoted in full in post 158 above, constitute a non-compliance with CPR 31.14?

 

V

[citizenB]

Learned advice wanted please.

 

In reply to my CPR 31.14 request I received a letter, I quote,

 

' We are wtiting to your letter dated ** *** **** requesting disclosure of documents under CPR rule 31.14. To deal firstly with disclosure of the credit agreement, we agree that this is a requirement of CPR PD 16 para 7.3. We have complied with this rule by attaching the relevant documents to the Amended Particulars of Claim, namely the "Application Form and Agreement" signed by yourself, the "Lloyds TSB Bank Credit Card Conditions" and the relevant card brochure which was serverd on you on the ** **** ****.

 

As to the question of further disclosure, this will be delt with in court on the ** ***. We will not be opposing disclosure and in fact will be asking the court to give the standard directions for disclosure and inspection. As to the points you raise in relation to CPR rule 31.14, the rule deals with inspection of documents, which follows disclosure.

 

If you have any questions in relation to law or procedure we suggest you seek legal advice.'

 

What now?

 

Points:-

1) The copy of the " Application & Agreement" is a microfische,

2) The "Terms & Conditions supplied were (are) on a completely different sheet, and not microfische.

3) I asked for a copy of the DN, although they say they sent one, I have never received one, and they don't appear to have, or admit to having a copy!-they DO say, in another document, 'It is not necessary for the Claimant to annex a copy of any default notice to the Particulars of Claim'.

 

As I ask-what now???

 

Viano

 

Another question, does the letter,quoted in full in post 158 above, constitute a non-compliance with CPR 31.14?

 

V

 

Right, hopefully the link I have put below will take you directly to 31.14 so I am not sure what they are saying about "inspection". Have a read of the CPR 31 and see if you can see what they are chundering on about.

 

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Ministry of Justice

 

This is the link to the full deck of CPR 31

 

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Ministry of Justice

 

 

It is my understanding that if a document is mentioned in the POCs then it should, be attached to the claim form. The Bulk centre is excluded from that but the documents should be made available at the earliest opportunity.

 

They have said in their repsonse above, they have provided you with a copy of the agreement/application and still maintain there is no necessity to supply you with the DN. Others with more knowledge will be able to confirm if that is in fact true.

 

HTH

[Viano]

Hi cB,

 

I'll go through CPR 31 again, I must admit that my head is in a spin at the moment, it's all taking a while to sink in.

 

I'm not sure that they know what they're doing so it is confusing us as well!.

 

If you recall the court ordered a fully particularised PoC, that was sent to me. In that was a whole load of waffle and bumf. The bumf contained a microfiche of the application form, with my sig. no prescribed terms, a separate T's & C's, Credit Card brochure and statements-no DN. In fact the DN is given brief mention in para 16 of the PoC's you quoted earlier, but, as I say NO DN with the PoC.

 

As I asked earlier do they not keep, or are they not supposed to keep a copy of such an important document to be produced (if necessary) in court.

 

Have they shot themselves in the foot, does the Pope wear a funny hat.

 

Do you think the other more knowledgeables are out there.

 

V

[citizenB]

H

 

As I asked earlier do they not keep, or are they not supposed to keep a copy of such an important document to be produced (if necessary) in court.

 

You would have thought that a document that is so important in the process of them being able to terminate and ask for their money back would need to be kept. 42man has posted some information regarding Default notices and it would appear if not prepared and sent correctly a strike out can be achieved which further implies it's importance.

 

Have they shot themselves in the foot, does the Pope wear a funny hat.

 

Would be nice to think so... I think it is funny

 

Do you think the other more knowledgeables are out there.

 

V

 

I know there are more knowledgeables out there.. 42man, being one and he has already posted information that should help.. the following link contains a post by another CAGer.... you should find more information within the post.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

HTH

[citizenB]

In the link below is an order from the court that the Claimant, in this case MBNA, where the DJ has specifically ordered them to provide a copy of the default notice and proof of service. 1b, I think.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2056007.html

 

I think this proves that they do have to and LTSB are talking nonsense in your case.

[steven4064]

If I can jump in - It sounds like they still haven't sent a copy of an enforceable agreement so that is something your defence should major on.

 

THey do not have to keep copies of DNs and they don't have to supply you with a copy. However, they do have to be able to prove they sent one. Ifthey cannot (or will not) do that, then you should request the court to either order them to prove they sent one or strike out their case under CPR 3.4(2)(a) on the grounds that s87 of the CCA 1974 says they do not have the right to bring the case in the absence of a valid DN.

[Viano]

Hi cB,

 

Thanks for the extra input, looks like I've a lot more reading to do!

 

Steven Hi, how do we get them to prove they sent a DN?

 

V

[Viano]

Hi again cB,

 

That link says it loud and clear.

 

Thanks for finding that, I should have them on two fronts now!

 

V

[steven4064]

To deal firstly with disclosure of the credit agreement, we agree that this is a requirement of CPR PD 16 para 7.3. We have complied with this rule by attaching the relevant documents to the Amended Particulars of Claim, namely the "Application Form and Agreement" signed by yourself, the "Lloyds TSB Bank Credit Card Conditions" and the relevant card brochure which was serverd on you on the ** **** ****.

No, no, no, no, no! They have complied with s78 of the CCA 1974 by doing that. They have not sent a copy of your contract as required bt CPR PD 16.

As to the question of further disclosure, this will be delt with in court on the ** ***. We will not be opposing disclosure and in fact will be asking the court to give the standard directions for disclosure and inspection. As to the points you raise in relation to CPR rule 31.14, the rule deals with inspection of documents, which follows disclosure.

Fair enough - keep at them for the actual contract.

3) I asked for a copy of the DN, although they say they sent one, I have never received one, and they don't appear to have, or admit to having a copy!-they DO say, in another document, 'It is not necessary for the Claimant to annex a copy of any default notice to the Particulars of Claim'.

They are right - they do not have to keeo a coy nor supply you with one. However, they do need to be able to demonstrate that they sent one (eg by showing the appropriate print out from your 'file' showing one was sent). You should put them to strict proof that one was sent and that it was vaild.