Court papers recieved. Can anyone help please?

[vixta]

My mum has just recieved a court claim off Lombard. She offered them a payment arrangement of what she could afford after she run into financial difficulties. They would not except this and now have gone to court. We had already sent them a CCA request which they replied to.

 

Here is the agreement and I will scan the t&c's that came with it in a min. and edit this post.

Would someone please have a look at it for us?

 

http://i492.photobucket.com/albums/rr284/Vixta_photo/Mags%20Lombard/Lombard1.jpg

 

http://i492.photobucket.com/albums/rr284/Vixta_photo/Mags%20Lombard/Lombard2.jpg

 

After lots of reading and some advice on here, I have come up with this.

 

The agreement parts 1, 2 & 3 are followed by a warning to read the terms and conditions on the reverse of the agreement.

This is followed by the signatures, there is no reference on the front of the agreement to the RIGHT TO CANCEL clause which is on the reverse side before the terms and conditions. Is this within the frame of one document? and therefore is this agreement enforceable?

 

Would really appreciate anyone in the know's help with this.

Edited January 26, 2009 by vixta
Adding second link

[DocH]

I don't know the answer concerning the Right to Cancel. What struck me was that this appears to be a multiple agreement in that there is reference to payment protection insurance on there. In that respect it does not appear to conform to the Act. pt2537 has produced a very useful thread on this subject here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html

 

Do you need any other help with the court claim?

[vixta]

Thanks for your reply DocH!

There was no payment protection taken on this it just says £0.00 next to that part. Have you any other comments on this?

It would appear that the "Right to Cancel" clause possibly in the wrong place may be the only problem with its enforceability. We really need a defence for this!

How can I get one of the site team to maybe have a look at this for us?

 

Thanks for that link its very useful for us. We never knew any of that.

[42man]

Vixta.....what is the date on the court claim ? can you tell us what the Particulars Of The Claim are ? (don't be too specific with the numbers though)

[vixta]

Hi 42man,

The claimant claim is for monies due under a consumer credit agrement (agreement no.) between the claimant and the defendant. Notice of default having been sent to the defendant on the _ /_/_. Full particulars of this have been delivered to the defendant and the claimant claimshe sum of £6500.00.

 

Amount Claimed £6500.00

Court Fee £190.00

Solicitor's Cost's £100.00

Total Amount £6790.00

 

We need to reply to the court by mid February. Is there any other info that you need.

 

Thanks Vixta.

[42man]

OK...in the first instance you have to acknowledge the claim within 14 days on the claim form, then you get a further 14+3 days in which to submit a defence (if this is what you want to do and you are prepared to fight)....ONE IMPORTANT POINT....if this is being chased by a debt collector as opposed to being claimed directly by Lombard then leave IN point number 3 as the debt would have been assigned over to a DCA....if it is being claimed for directly by Lombad LEAVE OUT point 3

 

It might be wise in the first instance to send them this (to the opposing solicitors) by recorded delivery

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the documents mentioned in your Particulars of Claim:

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the default notice

 

3 the assignment

 

Your client should ensure compliance with its CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[vixta]

Thanks 42man,

 

We have aknowledged the claim now we just have to file a defence or ask for a stay until they provide the information. (I think).

 

I will get the letter sent to Lombard's solicitors immediately.

 

Do you have any idea what our defence will be for. Or are we getting ahead of ourselves?

 

Thanks Vixta.

[42man]

There are 2 defences here that might help...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/167353-help-court-claim-howard-2.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161469-1st-credit-animal-2.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/176001-cl-finance-have-no.html

[DocH]

Did you actually receive a Default Notice prior to the commencement of the Court Claim? If you did it would be worth posting it up to see if it conforms to the requirements of the Act.

[supasnooper]

Hi there,

 

I've looked at the scans you've posted.

 

A few discrepancies I've noticed -

 

1/ The first scan is obviously a microfiche scan, which may suggest that they don't have the original agreement.

 

2/ The second scan has the top left hand corner of the document folded over.

 

Are these scans of one and the same document ? I doubt it.

 

The first question I would be asking if \ when the case gets to court under CPR 16.7(3) - Can you produce the original agreement for the court to view ?

[vixta]

Thanks Supasnooper.

 

Will make a note of that and put it in the file. People are very helpful on here. We are very greatful!

 

Vixta

[DocH]

Thanks for your reply DocH!

There was no payment protection taken on this it just says £0.00 next to that part. Have you any other comments on this?

It would appear that the "Right to Cancel" clause possibly in the wrong place may be the only problem with its enforceability. We really need a defence for this!

How can I get one of the site team to maybe have a look at this for us?

 

Thanks for that link its very useful for us. We never knew any of that.

 

Hi vixta, been doing a bit of research into the cancellation rights aspect of your agreement. It would appear that the placement of the Right to Cancel within the agreement is of no consequence, but this could also turn on whether what you have been provided with, is indeed a true copy of the reverse of your agreement. These are the sections of the Consumer Credit Act 1974 that deal with cancellation rights:

 

Section 127

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

 

(b) section 64(1) was not complied with.

Section 64

 

Duty to give notice of cancellation rights

 

(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

(a) must be included in every copy given to the debtor or hirer under section 62 or 63, and

 

(b) except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

The only possibility of making it unenforceable because of the cancellation rights is did you receive a copy of the cancellation rights after the agreement was executed? If not, you could go for unenforceability under Section 127(4).

 

Did you see my earlier post concerning the Default Notice?

Edited January 28, 2009 by DocH

[vixta]

Sorry I have not been back on this... been a bit side tracked. I will scan the default notice soon.

 

We have also had a reply from Lombard to the letter we sent under the CPR, this time they have only sent a copy of the agreement, no terms and conditions, why would they do that when they sent the terms and conditions under the CCA 1974 request?

 

Do you think this might be because the terms and conditions were not the original ones, they sent updated ones instead. We have to put a defence in by the 20th. Any ideas?

[DocH]

We have also had a reply from Lombard to the letter we sent under the CPR, this time they have only sent a copy of the agreement, no terms and conditions, why would they do that when they sent the terms and conditions under the CCA 1974 request?

 

Do you think this might be because the terms and conditions were not the original ones, they sent updated ones instead.

 

Highly likely. Under CPR PD 16 7.3 they know that they will have to bring to the court the original copy of the agreement. If that orginal agreement lacks original terms and conditions, they could be in trouble by attempting to pass off those terms and conditions previously sent to you, as original, if they weren't.

 

We have to put a defence in by the 20th. Any ideas?

 

I notice that you do not mention whether the claimant has sent a true copy of the Default Notice or Notice of Assignment as requested under the CPR 31 request. If that is the case, then we're probably looking at submitting an embarrassed/holding defence.

[vixta]

The solicitors sent the covering letter,looks like scanned page 1 of the agreement and a copy of the default notice. Here are the links to them all. Can anyone let us know there opinion in what to reply if anything to the solicitors or what to say to the court. This was everything recieved under the CPR request letter we sent which is shown earlier on this thread.

 

The covering letter.

http://i492.photobucket.com/albums/rr284/Vixta_photo/Mags%20Lombard/scan0003.jpg

 

Front of default notice.

http://i492.photobucket.com/albums/rr284/Vixta_photo/Mags%20Lombard/scan0001.jpg

 

Back of default notice.

http://i492.photobucket.com/albums/rr284/Vixta_photo/Mags%20Lombard/scan0002.jpg

 

The agreement.

http://i492.photobucket.com/albums/rr284/Vixta_photo/Mags%20Lombard/Lombard1.jpg

 

So as you can see no declarations from any witnesses who could be called to court to say this was a copy of the original and the date it was copied.

[Von Greenbach]

Front of default notice.

http://i492.photobucket.com/albums/rr284/Vixta_photo/Mags%20Lombard/scan0001.jpg

The default notice has not allowed 14 clear days

 

The agreement.

http://i492.photobucket.com/albums/rr284/Vixta_photo/Mags%20Lombard/Lombard1.jpg

The agreement looks OK to me but I'm no expert on CCA agreement

 

 

*If fact I'm no expert on many things*

[creditcardmug]

As VG says the DN wont stand up in court, you would have had to have received it on the same day as they sent it (dont tell them that...yet)

 

The agreement looks ok though, unless the figures are incorrect, others may have an opinion.

Edited February 12, 2009 by creditcardmug

[vixta]

Thanks VG and creditcardmug,

 

When do we tell them the default notice is invalid? at the court hearing????, and what can we achieve from the default notice being invalid, will this get thrown out. I understand why not to tell them about it now because surely it gives them chance to reissue the default notice.

 

I know alot of questions but would appreciate a response from anyone. As I have to post the defence today.

 

Thanks Vixta.

[creditcardmug]

what defence have you used, i didnt realise you were so close to filing it

[vixta]

Basically, we have responded saying they have not complied and sent them a copy of the letter asking for all the info under the CPR and we sent them what they have replied to us. Which is a front copy of the CCA, which refers to the back copy which they have omitted and reserved the right to alter our defece if they comply later. What do you think of that?

[DocH]

Thanks VG and creditcardmug,

 

When do we tell them the default notice is invalid? at the court hearing????, and what can we achieve from the default notice being invalid, will this get thrown out. I understand why not to tell them about it now because surely it gives them chance to reissue the default notice.

 

I know alot of questions but would appreciate a response from anyone. As I have to post the defence today.

 

Thanks Vixta.

 

An invalid Default Notice usually means game over for the claimants. In your amended defence you must mention the Woodchester Lease case law to support your case. There is a copy of it in the Case Law Library here on the forum.

 

http://www.consumeractiongroup.co.uk/forum/cases-library/1015-woodchester-lease-swain-co.html

 

Basically, we have responded saying they have not complied and sent them a copy of the letter asking for all the info under the CPR and we sent them what they have replied to us. Which is a front copy of the CCA, which refers to the back copy which they have omitted and reserved the right to alter our defece if they comply later. What do you think of that?

 

Sounds good so far. What happens next is the court will forward a copy of your defence to the claimants, who then have 28 days in which to respond and indicate to the court whether they wish to proceed with the case. If they don't respond within the 28 days then the case will be stayed. It would be worth giving the court a ring in about 6 weeks time if you have not heard by then, to find out what is happening. I was reading another thread on here yesterday in which the poster was saying that there is a three week backlog at Northampton.

Edited February 18, 2009 by DocH
added link to case law

[DocH]

Thanks VG and creditcardmug,

 

When do we tell them the default notice is invalid? at the court hearing????, and what can we achieve from the default notice being invalid, will this get thrown out. I understand why not to tell them about it now because surely it gives them chance to reissue the default notice.

 

I know alot of questions but would appreciate a response from anyone. As I have to post the defence today.

 

Thanks Vixta.

 

Well if these cretins did try to reissue a default notice it would have to be with your agreement! This thread explains what I'm on about:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

[vixta]

Bump

[vixta]

Bump

[Von Greenbach]

Vixta

 

Can we help with your bump?