Court claim from Lloyds TSB - Advice needed please.

[joan_of_arc]

Looking at a previous thread, it seems standard disclosure just eans a list of things I intend to rely on in court. Is that right?

 

Is there a form to use for this or is it just a case of me writing it out and sending it in the post? It has to be in by end of Wednesday.

[pt2537]

Looking at a previous thread, it seems standard disclosure just eans a list of things I intend to rely on in court. Is that right?

 

Is there a form to use for this or is it just a case of me writing it out and sending it in the post? It has to be in by end of Wednesday.

http://www.hmcourts-service.gov.uk/courtfinder/forms/n265_1005.pdf

 

there is the form you need

[joan_of_arc]

Thanks pt2537!

[joan_of_arc]

Right, I'm filling in the Standard Disclosure Form. I need a little advice.

 

When Lloyds TSB responded to my CCA request last year, they sent a really bad photocopy of my credit card application form. You can barely make out it's my name actually. The alleged T&C on the back of the form, which they also sent a copy of, are completely unreadable. Their letter accompanying these actually refers to "a photocopy of your credit card application form", and makes no pretence of it fulfilling the requirements of the CCA.

 

So I guess that puts me in a good position.

 

What I'm wondering though, is should I include the other photocopy they sent me, which was a copy of someone else's application, featuring all their personal details (surely a breach of the Data Protection Act)? I would love to throw that in just to show how sloppy they are, but I didn't mention that in my defence. Is it worth including in my disclosure, or is it inadmissible?

 

OK, that's not all. I still am a bit (a lot) scared at the prospect of the Fast Track procedure, as the notes for it suggest it might be beyond the ability of an ordinary gal like me

Should I get an 'expert'? A what was it? 'Lay counsellor' or somesuch? I know we're not there yet but I am trying to get my head into a place it's not used to being.

 

I keep telling myself that although I admitted in my defence to having a card with LTSB, the agreeent is not enforceable, as they haven't come up with the goods, a la a valid credit agreement.

 

They did serve me with a default notice (three, in fact!) but then again, they assigned it to a DCA without any notice of assignemnt, and whilst it was still in dispute.

 

Oh, I'm rambling here. I just want to finish this list. I need to list the case law that applies too. I'm cribbing off other threads but if anyone can save me some time by suggesting some appropriate case law (I still have tea to cook for hungry mouths).

 

I should have done this last week but life has been on top of me. 8)

[joan_of_arc]

Whoops, posted twice, sorry!

Edited December 15, 2008 by joan_of_arc

[joan_of_arc]

Three times! What's wrong with me?

Edited December 15, 2008 by joan_of_arc

[joan_of_arc]

Four!

Sorry, there must be something wrong with the computer. I'm not that dozy!

Edited December 15, 2008 by joan_of_arc

[joan_of_arc]

I've compiled a Disclosure list using a template that I found on another thread. I've included on it anything I thought might be useful. The official N625(?) form didn't have enough room so I didn't use it. Also it was a lot about what I hadn't searched for, which was a bit confusing. Hope the courts areOk with me not using it, but I need to get the list to the Claimant by Wednesday, so it's being posted guaranteed delivery, tomorrow morning, so they'll get it Wednesday morning.

 

I'd still be your friend forever if you could answer the questions in my last posting though .

 

I guess I'll get a list from them? What if I don't? Can I complain to the court?

 

Anyway I'm so tired. I must go to bed. Night night.

[joan_of_arc]

OK, it seems I don't need to send it to the court. just to THEM.

[joan_of_arc]

Well, I sent off a list of all the documents , case law etc I think I may need. All but the kitchen sink.

 

I sent it recorded delivery to their solicitors, Sechiari Clark & Mitchell.

 

The deadline was yesterday so they'll have received mine yesterday morning.

 

However, I haven't had anything from them, not yesterday and not (so far) today either. If they fail to comply with the deadline for Disclosure (as they have), how heavily does that weigh against them?

 

What if they don't disclose at all? :-|

[joan_of_arc]

Is there anything I can do to help my case against LTSB, as they have now missed their deadline for Disclosure?

 

As this date was set by the court, should I inform the court? My case, incidentally, is at

http://www.consumeractiongroup.co.uk/forum/legal-issues/157069-court-claim-lloyds-tsb.html

All details are on there.

[42man]

Joan I would ask for a strikeout....

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/136843-capquest-county-court-claim.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/134001-suggested-letter-where-claimant.html

[joan_of_arc]

Thankyou 42man

 

I'll draft a letter to the court, along the lines of the one on the link provided.

[joan_of_arc]

Well would you believe it! I was all ready to send off my letter to the Court, to tell them LTSB failed to submit a disclosure list, when one popped through the door. This was on Friday, ie. two days after the deadline.

 

Is it still worthwhile lodging a complaint about the failure to comply with the order?

 

The list contains a lot of stuff they object to my seeing, mainly internal correspondence, it seems like. :-|

 

What I could do with is some advice on is whether it is now a good idea to revise my defence, to specify the unenforcability of the debt, based on the lack of a true copy of a properly executed agreement (see poor photocopy, posted earlier in this thread).

 

My original defence (again, posted earlier in the thread) merely said that LTSB had failed to supply the documents requested. I didn't say that the documents which they did supply were inadequate.:-|

 

Deadline for response to the disclosure list is 24th December.

 

EDIT: One thing the disclosure list doesn't seem to mention is a signed credit agreement. It refers to a copy of the application form!

Edited December 15, 2008 by joan_of_arc

[Perdita]

subbing - im just going through the same process

[joan_of_arc]

Well, they were late supplying their Disclosure List, but they've been lightning fast in demanding copies of almost every document on my list! Some of them they should have, as they came from them.

 

I'd almost think they were just trying to wind me up by making me fork out for photocopying!

 

Ah well, I'll have to reciprocate.

 

Is it possible at this stage to amend my defence?

Edited December 16, 2008 by joan_of_arc

[Blondie40]

Under provisions of CPR 31.15© you can request refund of any cost incurred, 20p per copy is the rate.

 

They will probably ask you the same so if they have masses of documents you'll probably end up out of pocket.

[joan_of_arc]

OK thanks for that. Yes I think I only need to see anything that I haven't already. Best keep costs down.

 

I keep seeing ways to improve or focus my defence now which is annoying.

[steven4064]

I presume the AQ stage has passed as you are on to disclosure (you can do it then). Otherwise, you can make an application using a form N244 which will cost you £75.

 

joan asked about them asking for copies of docs - unfortuenately, they can do that. If it is on your list, they can ask for it even if they sent it in the first place.

[joan_of_arc]

Hi steven, thanks for the reply.

 

Yes, I am at the disclosure stage. Well, past it actually, as we both have the other's list. If it's going to cost £75 to make a change to my defence, I won't bother. My argument is that they didn't provide a true copy of a properly executed agreement, so the debt is unenforceable. My defence (posted earlier in the thread) could have been more specific about this point, rather than saying merely that they had failed to provide documents as requested.

[steven4064]

Be careful with the terminology - I expect they have provided a 'true' copy as defined in various Acts and cases. What they have not provided is a copy of an executable agreement. In court, they are obliged to provide the original (it says so in paragraph 7.3 of CPR Practice Direction 16). Under CPR 31 you have th eright tto inspect the original (in fact you can inspect all the documents they have)

[underdog13]

Best of luck with this Joan of Arc. I've just started on the same road as you wth Lloyds and SCM, so I'll be subbing this with especial interest.

[joan_of_arc]

Be careful with the terminology - I expect they have provided a 'true' copy as defined in various Acts and cases. What they have not provided is a copy of an executable agreement. In court, they are obliged to provide the original (it says so in paragraph 7.3 of CPR Practice Direction 16). Under CPR 31 you have th eright tto inspect the original (in fact you can inspect all the documents they have)

 

They have stated that they do not possess the original. All they have is a microfiched copy of the application form. They sent me that, with some T&C, bot illegible, and also someone else's application form, with all their personal details on.

 

Incidentally, they failed to respond to my disclosure list in time. The date set by the court passed by two days before I got a demand from them for copies of my documents. I did send them as requested but did I have to, as they had failed to comply with the directions of the court?

[steven4064]

If they don't have an original then, in theory, they should be stuffed. Unfortunately, courts sometimes miss this ovious fact.

 

At every stage from now on, underline the fact that they must produce a copy of the original agreement (as per CPR PD quoted above) and that the copy they have sent is not enforceable under s65 of the CCA 1974 by virtue of s127(3). Include the case law fomr a pt2537 defence on the necessity of producing an enforceable agreement:

The requirement for the executed agreement to be brought before the court

 

10. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

11. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

12. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

13. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

14. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

15. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

16. Notwithstanding point 19, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

17. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 14 to 20 of this defence to have any right of enforcement. I note that the claimant should also have provided this documentation prior to bringing this action and it is requested that the claimants case be dismissed until such time as they comply with the S78(1) request made on xx/xx/2007 as laid out above.

 

18. Further, under CPR Practice Direction 16 paragraph 7.3 an original of the agreement must be produced in court. There is no provision that an agreement containing the prescribed terms may have existed or that the balance of probabilities are that such an agreement existed.

The courts power of enforcement

 

19. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

20. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

21. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

22. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

23. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

 

25. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

24. Therefore I respectfully request that if the court does not dismiss the claimant s case as laid out in point 21, that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

25. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

Edited December 22, 2008 by steven4064
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[joan_of_arc]

Hi everyone, merry christmas!

 

I just thought I'd update you on my defence case:

 

I got copies of all the documents requested by LTSB sent off to them, before the court deadline (unlike them!) I've had no response from them (well, it is christmas!) but they should have received them. All they wanted was copies of letters sent to me by LTSB themselves, and from the DCAs they passed it to, before it was passed back to the OC.

 

I didn't ask them for anything. There wasn't anything on their disclosure list I saw as significant, even in the stuff they didn't want me to see.

 

So now I'm waiting. Can't afford £75 to submit a modified defence so I'll hone my original. I need to start reading up on case law and the statutory instruments which are relevant. :-|

 

A question: do the courts allow me to read from notes as a Litigant in Person? I can't memorise everything!