Lloyds v Me

[steven4064]

What is the hearing for? Does it say?

[Viano]

I quote exactly

 

'TAKE NOTICE that the Defendant's application for setting aside judgment will take place on

 

30 October 2008 at 10:00 AM at ******* County Court (address)

 

When you should attend

 

20 MINUTES has been allowed for the Hearing'

 

Apart from saying the case may be released to another Judge ,and a note about the facilities at the Court that's about it.

 

NB N244 Application notice:

 

Q 3. What order are you asking the court to make and why?

 

A. A set aside of the Judgment against me for a Credit Token, namely a Lloyds Asset Card, that was never applied for by me or issued to me.

 

Q 4. Have you attached a draft of the order you are applying for?

 

A. No

 

Q 10. What information will you be relying on, in support of your application?

 

I ticked the box ' the statement of case'

 

I stated ' The Claimant states in the Particulars of Claim that I, the Defendant, was issued a Credit Token, a Lloyds Asset Card. I, the Defendant, never applied for nor was issued with a Lloyds Asset Card.

 

I then signed the Statement of Truth.

 

That's the bones of it.

 

I hope that's of help

 

V

[steven4064]

Hi V

 

It's hard to say what else you can do. It's hard to prove a negative but it is up to the claimaint to prove you had a card and that you used it. Here's some stuff you might find useful.

 

If you appled for a card, there would have been an application form. Where is it? If a card was issued, there would have been a written agreement regulated by the Consumer Credit Act 1974 - where is that?

 

Paragraph 7.3 of the Civil Procedure Rule Practice Direction 16 says that in a case based on a written agreement, the agreement should be attached to the POC and the original produced in court. If you had a card, you should ask them where the agreementt is and why they haven't produced it in court as required by teh CPR (if they don't).

[Viano]

Hi Steven,

 

Thanks for that.

 

I didn't apply for that card, so no application form so no CCA, and as for the agreement, it wasn't, and since there wasn't one, couldn't have been attached to the PoC's.

 

Any suggestions as to what I should take to Court.

 

V

[steven4064]

I would prepare a list of questions - where is the appliactin form? where is the agreement? why was it not attached to the POC? why has it not been produced in court as required by the CPR? etc

 

and a brief sttaement - I never applied, never was isisued....

[Viano]

OK, Thanks for that.

 

Wish me luck.

 

V

[steven4064]

Good luck - let us know the outcome

[Viano]

Thanks Steven, will do.

 

V

[steven4064]

Also, if you had an account, there ought to be statements - ask about those too

[Viano]

We have a set-aside.

 

Claimant to file at Court "Fully particularised claim within 28 days"

 

No order as to cost (for) today.

 

V

[pt2537]

We have a set-aside.

 

Claimant to file at Court "Fully particularised claim within 28 days"

 

No order as to cost (for) today.

 

V

28?

 

Geez, id have asked for 14:grin:

 

but apart from that, its a bloody good result, so lets see what they throw at you in reply

[Viano]

Bugger!

 

I'm so slow witted, I didn't think to ask.

 

V

[pt2537]

Bugger!

 

I'm so slow witted, I didn't think to ask.

 

V

Ah i wouldnt bother about it

 

its not a problem honestly

 

 

like i said lets see what they come up with,

 

i will try to look in as often as i can to see how things are going

[Viano]

Thanks Paul,

 

At least I have 28 days respite!

 

Only jesting about the 14 days.

 

V

[Viano]

Hi all,

 

Received from the Court today:

 

It is ordered that

 

1. Judgment set aside.

 

2. The Claimant do file at Court and serve upon the Defendant a fully paricularised Particulars of Claim by 4:00pm on 27 November 2008.

 

3. The Defendant do file at Court and serve upon the Claimant a fully particularised Defence by 4:00 on 31 December 2008.

 

4. If a Defence is filed the parties are to complete and file Allocation Questionnaires.

 

5. No Order as to the costs of today.

 

Any comments please.

 

V

[Viano]

Hi All,

 

I'm back.

 

I've now heard from the opposition! I intend to file a defence, more of which later, but as it says in my last post (above) point 4 'If a Defence is to be filed the parties are to complete and file Allocation Questionnaires'

 

What is the procedure for this please?

 

Viano

[steven4064]

The AQ comes a lot further through the process. Once POC and defence have been filed, the court will send you an AQ.

[Viano]

Thanks Steven,

 

I'll now get on with my defence. I'll post the bones of it latter.

 

Viano

[Viano]

Having read again the set aside order, I am now somewhat confused.

 

Para 2 of the set aside states: 'The Claimant do file at Court and serve upon the Defendant a fully particularised Particulars of Claim', what I received was an Amended Particulars of Claim, this is for a different card that is on the Original Court Claim. Is this significant?

 

Viano

[pt2537]

Having read again the set aside order, I am now somewhat confused.

 

Para 2 of the set aside states: 'The Claimant do file at Court and serve upon the Defendant a fully particularised Particulars of Claim', what I received was an Amended Particulars of Claim, this is for a different card that is on the Original Court Claim. Is this significant?

 

Viano

Right, the order was that they file and serve

 

so they should have sent the court and you a fully particularised claim by the 27th November

 

if you have not received anything from the other side then the first thing you do is call the court, ask if they have received anything from the claimant since the order was made.

 

 

if they have failed to follow this then application time to have the case struck out or for an unless order

[Viano]

Hi Paul,

 

I received the Amended PoC's before the due date, my question is, that the Original Claim was for a Lloyds Asset card, what they have done is not to file full PoC's for this card but amended it (and state Amended PoC's) for a different card!

 

V

[pt2537]

Hi Paul,

 

I received the Amended PoC's before the due date, my question is, that the Original Claim was for a Lloyds Asset card, what they have done is not to file full PoC's for this card but amended it (and state Amended PoC's) for a different card!

 

V

than that is their case mate, so we need to accept it and see what they are saying, if they plead that the little green men from mars are coming so you should pay them then thats their call, at the end of the day you can only counter their arguments

 

can you let me know what their Amended POCs say please

[Viano]

All 6 pages?

 

V

[pt2537]

All 6 pages?

 

V

if thats what they sent

[Viano]

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