Court claim from Lloyds TSB - Advice needed please.

[joan_of_arc]

Right, I've managed to do what I think is a proper skeleton argument (ie, it's stripped down to the bones). Would someone have a look and tell me what you think? :grin:

 

(check out the modified version a few posts down)

Edited March 15, 2009 by joan_of_arc

[joan_of_arc]

That's the one CCM! I like the second one as well.

 

I still need to know where the stuff about verifying copy documents came from though. I need to be watertight.

[popeye1]

3. has have have

[joan_of_arc]

3. has have have

 

Whoops. So much for my proof reader!

[joan_of_arc]

This from Francis Bennion author of the CCA

 

Sorry I forgot to say thanks for that, creditcardmug. I may bring that out in my 'spot' before the judge.

 

My partner has now taken over the bulk of the research and has been working as if he's swotting for a degree on this and just telling me what to say, I can't believe how wonderful he's been and maybe when this is over he'll tell you his username on here so he can take the credit for all this because he deserves it and I don't, and I don't want any of you reading this thinking I'm wonderful and admiring me because I am just the puppet and he has been pulling the strings so it is he who is to be admired in this case (he is extremely modest which is why he's been allowing me to take all the credit even though I said I wasn't happy about it.)

 

I've recently had to take more of a back seat because as I said last year, I'm a writer, and since all this started I've had two novels published which has meant I've been working 15 hour days...and get this for brilliant timing...my book launch for the first novel is a few days before the court case.

 

And in the evening after the court case I have to get up on stage in front of an audience to read excerpts from one of my books (There isn't a "sheer terror" emoticon but that's the one I should be using.)

 

Anyway this has all seeped into my subconscious and last night I had the first nightmare about the case.

 

In the nightmare, my partner forgets to tell me that the court case has been moved forward to TODAY. But TODAY is actually the day when I have to go through all the notes and make sure I thoroughly understand every aspect of everything. So I'm in court, haven't studied a thing, and I've forgotten what that document is abbreviated by three letters that Lloyds TSB should have provided in the first place. We're sitting outside the courtroom and I'm asking my partner what the three letters are and he's got headphones on and is listening to Bjork! (one of his favourite artists.) So he can't hear me.

 

I take his headphones off, tell him it's time to go in and we're ushered in to the front row of this wild west style courtroom with wooden benches. At the last minute I ask the judge permission for my partner to be there with me and he says it's OK (even though I know that technically I should have asked for permission the week before.)

 

We're sitting in the front row and I'm hissing at my partner "What are the three initials?" and he can't remember. He thinks it's "QRA". I tell him it's not "QRA" it begins with a "C", something like "CAD" ( I was watching Grand Designs yesterday, "CAD" is an architect's design programme.) He tells me authoritatively that it's not "CAD" but he can't remember what it is. Their solicitor, who is sat a few seats away from me and is a fat, pompous, oaf smelling strongly of Lynx body spray, then complains loudly about our whispering and the judge smirks at all of us in a particularly machiavellian manner.

 

That is enough to wake me up sweating profusely, and I elbow my partner in his back and wail at him "What are the three letters? What are they? You forgot!" and he mumbles at me that it's too early to talk, whereupon I remember that it was all just a dream and what they should have provided me with was a "CCA."

 

I am feeling troubled. I will put my partner on once we are up and about because today is a full joint "court case study day". I feel vaguely nauseous. To cap it all, I've been in the local press because of my books and I'm now worried that the court reporter will recognise my (rather memorable) name and it will all end up in the papers.

 

"Local author hauled into court by bank".

 

Oh. My. God.

Edited March 15, 2009 by joan_of_arc

[joan_of_arc]

Looking back through the early correspondence between me and ****, we found a letter which they sent me in October 2008, which I'd pretty much forgotten about, but my partner says I should bring it to the judge's attention.

 

At that stage, the court claim had been issued but we hadn't even got to the Allocation stage, so it was very early days.

 

Their letter says:

" Following our clients instructions in this matter, you are advised that we have requested the County Court to enter Judgment[sic] against you. A Judgment Order detailing payment will therefore be sent to you by the Court in due course."

 

It then tells me how I can pay etc etc.

 

I remember at the time panicking thinking that somehow the judgement had already been made, and it's easy to see how some people might be frightened into paying up.

 

We think this is both highly misleading and an intimidatory tactic, and the last sentence is verging on being a lie.

[joan_of_arc]

OK, modified the skelly a bit.

 

In the xxxxxx County Court

Claim number: xxxxxxx

Between: ` Lloyds TSB Bank PLC - Claimant

and

Joan of Arc - Defendant

 

Skeleton Argument

 

1. The Claimant (LTSB) states that The Defendant (JOA) held or holds a credit card account with them, commencing in or around March 1998, based on a written credit agreement which is/was regulated by the Consumer Credit Act 1974 (CCA 1974), and that JOA defaulted by virtue of being in breach of that agreement, giving rise to this action.

2. LTSB served a Default Notice upon JOA on XXXXXX, in respect of the alleged breach of the agreement.

3. LTSB have admitted in writing that any original credit agreement which may have existed has been destroyed and have have, as evidence, produced an alleged copy of a credit card application form in JOA's name, which is a poor copy and is largely illegible. However, under CPR Practice Direction 16, paragraph 7.3, an original of the alleged agreement should be produced in court.

4. LTSB are in breach Reg. 2 of The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, which requires that copies of such documents are easily legible.

5. LTSB have not given formal notice of their intention to adduce hearsay evidence, as required by s2(1) of The Civil Evidence Act 1995, and are thus in breach of that Act.

6. LTSB are required by s8(1)b of The Civil Evidence Act 1995 to provide unambiguous proof of the authenticity of any copied documents. They have failed to do so, despite a formal request from JOA, and admit that no such proof exists. They are thus further in breach of that Act and the reliability of that part of their evidence is questionable.

7. The Consumer Credit (Agreements) Regulations 1983 require certain prescribed terms to be embodied within the signed document which constitutes the credit agreement. The Terms and Conditions supplied by LTSB are in a copy of a document which is separate from the alleged copy of the credit agreement. There is no verifiable proof of any link between the two documents. Additionally, the illegibility of the copy makes it impossible to ascertain the true content. For these reasons the copies supplied do not meet the requirements of the Regulations and, thereby, of s60 of the Consumer Credit Act 1974, and the alleged agreement is improperly executed.

8. The judgement of TUCKEY LJ in Wilson & another v Hurstanger Ltd [2007] confirms that the terms prescribed in schedule 6 of the Regulations must be contained "...within the four corners of the agreement [and] cannot be found in another document..."

9. LTSB must produce a document compliant in full with the requirements of the Consumer Credit Act 1974 and associated Regulations, to have right of enforcement by the courts.

10. The judgement in the House of Lords of LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) confirms that, where a document produced in court is improperly executed and does not meet the strict requirements of the Consumer Credit Act 1974 and associated Regulations, then it cannot be enforced.

11. Due to the lack of verifiable proof as to the authenticity of the documents supplied in lieu of the alleged agreement, together with their illegibility, it is not possible to identify those parts of the agreement which JOA is stated to be in breach of, in the Default Notice issued by LTSB. It is not possible to prove that the parts of the agreement referred to in the Default Notice exist within the alleged agreement at all, or if they ever did. The Default Notice is therefore not compliant with s88(1) of the Consumer Credit Act 1974 and it is requested it be removed from the defendant's credit file.

12. Unless LTSB are able to produce the original credit agreement, or a legible copy thereof, together with verifiable proof of its authenticity, it is requested that their claim be denied and an enforcement order is not made by the court, under the powers granted to it by s127 of the Consumer Credit Act 1974. It is further requested, in view of the lack of adequate documents as stated, that the court exercise its powers under s142 of the Act, to dismiss any further application for enforcement of this debt.

What do you think about the last bit, referring to s127 and 142, and asking the judge to rule out any future applications? Too cheeky?

[underdog13]

My sympathies for the tremendous pressure you are under Joan; what rotten timing.

 

Congratulations on getting two novels published, though - a tremendous achievement in what is such a hard market to break into:)

[joan_of_arc]

My sympathies for the tremendous pressure you are under Joan; what rotten timing.

 

Could have been better, yes. Still, not as hard as bringing up small children.

 

Congratulations on getting two novels published, though - a tremendous achievement in what is such a hard market to break into:)

 

Thanks. I'm trying to look on the bright side of all this and look on it as "material" . Not many authors get the chance to get taken to court

[joan_of_arc]

My partner and me have come up with a 'script' for me to read out when I get my 20 minutes to put my side of the case. We've also drawn up a list of cross-examination questions which (we hope) will make the other side look like idiots in front of the judge.

[popeye1]

Your 3rd could be about debt.Back to the skelly ,could 11 be split in two maybe.[have haves are still there]. i could well pinch parts of your skelly if you dont mind ,well done.

[joan_of_arc]

Hello, this is Joan's partner here. I just want to say cheers to you guys for all the help and advice you've given 'joan' (seems funny calling her that!). I post on these forums myself, about my own financial battles (I don't want to give away my user name on here though), and I have of course been helping Joan out with this all along. The advice you've provided has made me think she has a really good chance against Lloyds TSB a week on Thursday, and it's also taught me a lot about how to deal with these people in my own issues. Thanks, every one of you.

[joan_of_arc]

Of course you can use bits of my skellington argument! I'm honoured that you think it's good enough!

 

OK the 'have have' has gone now.

 

And I split 11. Whaddya think?

 

11. Due to the lack of verifiable proof as to the authenticity of the documents supplied in lieu of the alleged agreement, it is not possible to reliably identify those parts of the agreement, which JOA is stated to be in breach of in the Default Notice issued by LTSB.

12. Due to the illegibility of the copy documents, it is not possible to prove that the parts of the agreement referred to in the Default Notice exist within the alleged agreement at all, or if they ever did. For this reason and the reason given above, the Default Notice is therefore not compliant with s88(1) of the Consumer Credit Act 1974 and it is requested it be declared void and removed from the defendant's credit file.

[popeye1]

Bl***y hell that was quick,i hope the legals have a look now .

[underdog13]

Think the script and prepared questions are really good ideas - the very best of luck to you on Thursday, Joan, for court and reading the excerpts from your novel

[empowered]

Looking back through the early correspondence between me and ****, we found a letter which they sent me in October 2008, which I'd pretty much forgotten about, but my partner says I should bring it to the judge's attention.

 

At that stage, the court claim had been issued but we hadn't even got to the Allocation stage, so it was very early days.

 

Their letter says:

" Following our clients instructions in this matter, you are advised that we have requested the County Court to enter Judgment[sic] against you. A Judgment Order detailing payment will therefore be sent to you by the Court in due course."

 

It then tells me how I can pay etc etc.

 

I remember at the time panicking thinking that somehow the judgement had already been made, and it's easy to see how some people might be frightened into paying up.

 

We think this is both highly misleading and an intimidatory tactic, and the last sentence is verging on being a lie.

 

Hi Joan and partner

We too had this frightening letter and if we had not already read about it elsewhere would have been terrified:eek: Watching with great interest as **** have issued 2 claims against OH and our defence will be unenforceable agreement - go get 'em girl:p all the luck on the 26th although you are sooo prepared I don't think **** will know what has hit them:D x

[joan_of_arc]

I spoke to a clerk at the court this morning and he said that unless directed otherwise it is usual for Trial Bundles and Skeleton Argumants to be delivered 14 days before the trial date!

 

The directions say 7 days for the Trial Bundle, and seem to indicate that only the Claimant should submit one. I'm still unsure about it so I'm submitting one anyway.

 

The Directions do not make any mention of skeleton arguments so I shall just submit mine anyhow and hope it's OK.

[joan_of_arc]

Still can't find where this came from...

 

" produce proof of the authenticity of the copies. This could include but not be limited to:-

 

a)a copy of the procedure(s) used for copying, storing and retrieving documents.

b)a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and the time and date of destruction of the original document(s).

c)copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with.

d)copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards."

 

Anyone recognise it?

 

I'm submitting a Trial Bundle tomorrow, even though the Directions don't ask for one from me. Skeleton argument too. Gulp!

 

I'm not sure if I should send the skelly to **** now or just before the trial. Maybe sending it now might scare them. On the other hand, maybe it'll help them shape their attack.

 

One other thing...should I include the full version of Case Law I've used, or is just an extract OK for the Trial Bundle? Same with CPR and Regulations, Acts etc. Does anyone know?

[atwozee]

Have a look at the Civil Evidence Act 1995 - s8 (1) (b)

 

Civil Evidence Act 1995 (c. 38)

[creditcardmug]

Still can't find where this came from...

 

" produce proof of the authenticity of the copies. This could include but not be limited to:-

 

a)a copy of the procedure(s) used for copying, storing and retrieving documents.

b)a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and the time and date of destruction of the original document(s).

c)copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with.

d)copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards."

 

Anyone recognise it?

 

I'm submitting a Trial Bundle tomorrow, even though the Directions don't ask for one from me. Skeleton argument too. Gulp!

 

I'm not sure if I should send the skelly to **** now or just before the trial. Maybe sending it now might scare them. On the other hand, maybe it'll help them shape their attack.

 

One other thing...should I include the full version of Case Law I've used, or is just an extract OK for the Trial Bundle? Same with CPR and Regulations, Acts etc. Does anyone know?

 

 

Not sure which of his posts, but surfaceagentx20 wrote it....ill have a look for it if i get time

[joan_of_arc]

Well, my red ring-binder, labelled 'Defendant's Trial Bundle' is on its way to court shortly, with my other half. He's dropping it off together with my skeleton srgument and a written request that he be allowed to accompany me on the day. Well, if you don't ask, you don't get, is what I always say.

 

My Trial Bundle took a lot more work than I thought. I was just going to chuck everyting in but in the end I just included those things I feel are directly relevant to my case. I don't think there's anything in there that isn't also in the opponent's Trial Bundle, so I can't be accused of sneaking things in undisclosed. It's just that I've hand-numbered all the pages, and made references to them in my 'script' which I'll be reading from when I present my case.

 

Hope the Judge uses it! As I said, the Directions only asked for one Trial Bundle, so I'm submitting something which wasn't asked for. I guess if worst comes to worst, the Judge will ignore it and just use theirs, which won't allow me to refer to specific pages but it should still contain all the necessary documents, and the folder I'll take in with me will have them all in anyway, if the judge needs to see something. Scary!

[citizenB]

Looking back through the early correspondence between me and ****, we found a letter which they sent me in October 2008, which I'd pretty much forgotten about, but my partner says I should bring it to the judge's attention.

 

At that stage, the court claim had been issued but we hadn't even got to the Allocation stage, so it was very early days.

 

Their letter says:

" Following our clients instructions in this matter, you are advised that we have requested the County Court to enter Judgment[sic] against you. A Judgment Order detailing payment will therefore be sent to you by the Court in due course."

 

It then tells me how I can pay etc etc.

 

I remember at the time panicking thinking that somehow the judgement had already been made, and it's easy to see how some people might be frightened into paying up.

 

We think this is both highly misleading and an intimidatory tactic, and the last sentence is verging on being a lie.

 

You could send a copy of the letter to the OFT. They wont be able to do anything for an individual however, they do appear to be keeping a record of the misleading information these companies send to consumers.

 

My partner and me have come up with a 'script' for me to read out when I get my 20 minutes to put my side of the case. We've also drawn up a list of cross-examination questions which (we hope) will make the other side look like idiots in front of the judge.

 

This sounds like a brilliant idea.

 

Well done both of you and congratulations on teh book launch.

[joan_of_arc]

Thanks CitizenB!

It's pretty much all down to me and the Judge on the day now.

[questioning]

Hi Joan,

I've been following your thread from the beginning, just like to say GOOD LUCK

Very helpful thread too.

You are extremely fortunate to have your partner helping you, two heads are always better than one. You know your case which is the main thing. I think you have a really good chance here.

Unfortunately although I have a very dear husband it is I that has to do all the swatting and then try and teach him. He picks things up easily and if I was going to court I would take him for moral support.

I may be wrong but I thought you could ask for permission to take someone to court with you and its usually agreed. You can talk to them but they cannot speak on your behalf. This is how I understood it.

I know you have asked permission for your OH to attend court with you,

Have you had a reply from the court about this?

 

PS. As for trying to work out who Joan is, (this applies to posts later in this thread, please don't take offence, none meant,) IMHO I hope such assumptions will remain private. If Joan ever wishes to reveal her books or identity to us then fine, if not i hope her identity never becomes a guessing game.

Edited April 1, 2009 by questioning
just added a PS.

[joan_of_arc]

Hi questioning. No, no reply as yet. I wrote to the court on Tuesday (hand delivered) so hopefully hear back today.