LLOoyds/SCM claimform - Lloyds loan **SUMMARY JUDGEMENT DISMISSED ** BATTLE CONTINUES

[pompeyfaith]

Right can you use the PM and send me an email address i can forward these docs to.

[AndyOrch]

Excellent leon

 

Many thanks for the assitance with Tonkas Case.

 

Regards

 

Andy;)

[pompeyfaith]

Andy,

 

No problem after all I have had enough help from you.

 

Help and be helped is my motto.

 

Regards

 

PF

[Tonka99]

Hi Guys

 

Yes I do have questions & my brain is now dead

on page 1 CC after the bits about the cost of credit ect

do i then add what you have caculated pf

Andy im struggling shall i post up the defence

 

I have skittles here tonight chaos

 

Tonks:)

 

Oh very many thanks for your help without you all I would never

have got this far

[pompeyfaith]

Yes post up the defence

 

PF

[pompeyfaith]

Cc = Court Claim ?

[Tonka99]

Ok here goes

 

front page amended defence

 

 

 

In thexxxxxx County Court

Claim No xxxxxxx

 

 

Claimant Lloyds TSB Bank PLC

 

 

Defendant Tonks

 

 

 

 

AMENDED DEFENCE

 

 

I Tonks

am the Defendant in the above case and make this amended defence today

the 03rd October 2009 as follows:

 

 

1 This Defence is made in addition to my Defence dated 10th March 2009 in opposition to the Claimant’s claim dated 06th February 2009 and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract.

 

 

 

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry DFN6000B NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

 

7 The claimant has already admitted in a letter dated 4th March 2009 that they are unable to produce a copy of the default notice. However at the Hearing for Summary Judgement before Deputy District Judge Derbyshire on the 21st July 2009 the claimants counsel produced a Default Notice from a self help Consumer Website

that the defendant has been researching on , As this is a website where users conceal their personal details for reasons of anonymity there are many such documents posted for advice and it is not clear how the claimant can assume it is conclusive evidence, also the claimant did not disclose this before the

Summary Judgement Hearing , I draw the Judges attention to The Civil Evidence

Act 1995 and the issues of adducing hearsay evidence in a court .

 

 

8At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

page 2 you have seen

page 3 you have seen

page 4

e 4

 

 

 

 

At the Summary Judgement Hearing held at xxxxxxx County Court on the 21st July 2009 Before Deputy District Judge xxxxxxxx

 

 

The Judge ordered that the application for judgement be dismissed The grounds for this were found to be that the Consumer Credit Agreement 1974 did not comply with the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in that the prescribed terms were not contained within the agreement .

A recent judgement at South Shields County Court may have far reaching effects not only for pre-

2007 Consumer Credit Act agreements but also for Consumer Credit agreements under the new 2006 legislation

The case which was brought against MBNA in respect of an alleged credit card debt was decided

for the claimant predominantly because MBNA were unable to provide a true copy of the original

credit card agreement.This is very established law and causes no surprises as this principle has been

often tested since 1974. In fact the only real surprise is that MBNA decided to defend the case at all.

 

 

What is particularly significant about this case is that there had also been mis selling of PPI Payment Protection Insurance . The judge referred to this aspect of the case in her judgement and

decided there had been an unfair relationship between the claimant and MBNA because of the way

she had been sold Payment Protection Insurance .

This case is highly significant for claims brought under the old 1974 legislation because it adds another important basis upon which Consumer Credit Act agreements may be rendered unenforceable. This is in addition to the very much more usual ground for an enforceability that the

agreement is flawed in some other way because it is not properly executed, or that a true copy cannot be produced by the lender.

It now seems likely that even where an agreement seems to be properly executed, if the agreement

has been accompanied by PPI which has been mis-sold, this mis-selling itself is a basis upon which

to vitiate the entire loan agreement .

 

 

This principle that a Mis-sold insurance policy is capable of tainting and invalidating the entire

agreement is likely to become a very dominant feature in challenges to Consumer Credit Act agreements which have been concluded under the new 2006 legislation.

 

 

The Defendant has been a customer of Lloyd's bank for over thirty years and has had an excellent

credit rating , it is a very sad state of affairs when the bank themselves are putting there customers

into unnecessary debt by selling them something which is not fit for purpose and cannot be relied

upon should the unfortunate happen , the defendant is Counter claiming for Loan Protection

Insurance which was mis-sold with the Personal Loan at a time when the defendant had no means

of repaying the loan as he had sold his business & had not purchased another ,and had no fixed

address except a touring caravan .

 

 

Where as the 1974 legislation required very strict adherence to highly detailed requirements in any

agreement , as well as requiring a fair and balanced relationship between the contracting parties,

the 2006 Act is not so concerned with the form of the agreement and whether all of the I,s have

been dotted and the T,s crossed. The entire focus of the 2006 legislation is upon the relationship

between the lender and the borrower and seeks merely to ensure that there is a fair, balanced,

transparent and non abusive relationship between them.

 

page 5 i NEED SOME HELP PLEASE

age 5

 

 

 

 

 

 

 

 

 

 

An Agreement that is not properly executed and was signed before 2006 is not enforceable unless it has the debtors signature and the prescribed terms in the same document

 

 

The enforceability of an agreement that is not properly executed, signed after 6th April 2007 and not having the debtors signature and the prescribed terms in the same document may not be enforceable but its enforceability has to be argued on a case by case basis (you can not use section 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.

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 s61 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 the

Should the Claimant be unable to produce the ORIGINAL agreement signed by both the defendant and the creditors representative and containing the prescribed terms, I request that the court use its powers under Section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

 

 

 

 

 

Andy I cant seem to get this page right

 

 

 

 

[Tonka99]

Sorry this is to follow on from the front page 1-8:)

 

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me.

 

 

10 Moreover, The claimant claims the default notice was sent on the 24th April 2008 and that the default notice if it could be seen by the court would show it had allowed 14 days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed 14 days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the 1st May 2008 and gave 14 days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s Collection Centre sent a Letter Before Action on the 14th April 2008 demanding payment of the full balance, this was not received until 23rd April 2008 being just 1 day before the claimant claims the default notice was sent. I have retained the envelope which

was sent from the collection centre at Brighton by second class delivery as stated on the envelope posted

the 17th April 2008 received by myself on the 23rd April , the Default Notice also came from the collections

centre in Brighton I put the claimant’s to strict proof that they indeed did send the said default notice on the.24th April 2008.

11 The delivery of the letter before action is good evidence that on or before 14th April 2008, the Claimant terminated the agreement.

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me before the 1st May 2008 the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on 1st May 2008 and which gave to me 12 days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

13 The claimants claim also includes charges. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

 

14 It is also averred that the claim also consists of mis sold Loan Protection Insurance a Counter Claim

has been approved By District Judge xxxxxxx on the 14th September 2009.

 

 

15 It is denied that the alleged Credit Agreement attached referred to in the particulars of claim represents

a regulated agreement under the terms of the Consumer Credit Act 1974(CCA)

 

 

16 please see page 2 The Importance of a copy of the credit agreement and its production in court.

 

 

17 please see page 3 The courts power of enforcement

 

 

18 please see page 4+5 Conclusion

 

 

Statement of truth

[Tonka99]

Pf CC counter claim yes:)

 

 

the xxxxxx County Court

 

 

Claim No xxxxxx

 

 

Claimant Lloyds TSB Bank PLC

Defendant Tonks

 

 

 

 

Counter Claim

 

 

I Tonks am the Defendant in the above claim and make this statement to Counter

claim for the mis selling to me of Loan Protection Insurance from Lloyds TSB Bank PLC.

 

 

On the 14th October 2006 the defendant entered into a Personal Loan contract with Lloyds TSB Bank PLC

Account No xxxxxxx

 

 

The Defendant was persuaded by the Banks representative to take Loan Protection Insurance (LPI) to Insure future payments to service the Loan were met.

 

 

 

 

1. At this time the defendant was 64 years of age
   
2. Self Employed
   
3. Was not informed he could purchase Loan Protection Insurance from another source
   
4. Was Insured for £120,000 elsewhere for life cover
   
5. Had a pre-existing medical condition
   

At the time the defendant knew nothing of Consumer Law and relied upon the advice and integrity of the banks representative, the defendant at this time was not employed or self employed as having sold his business and having indeed no fixed address .

 

 

In January 2008 the defendants new Business took a considerable down turn in trade and the defendant was unable to make the repayments to honour the personal loan , looking through the

Loan Protection Booklet to find how to claim it came to the defendants attention that he was

now too old and not now unable to claim for Unemployment ,Accident or Sickness benefit Hospitalisation Cover , which in fact left him with just a very expensive life cover .

 

 

The Banks representative would have known this when she sold the Loan Protection Insurance

as the defendants date of birth would have confirmed that the cover would in fact have only provided protection for six months until his 65th birthday .

 

 

The Loan for the Loan Protection Insurance was £7,745.30 total charge for credit £3,140.26

grand total £10,885.56. had this not been sold the defendant asserts he may well have been able to afford the monthly payments to service the Personal Loan .

 

2

 

 

The Competition Commissions enquiry into Payment Production Insurance has revealed

that the large profits made by banks from selling PPI alongside personal loans have been

propping up unprofitable lending.

 

 

PPI is sold to cover repayments on loans mortgages and credit cards should a borrower

lose their job or become too Ill to work.

 

 

The OFT has already found evidence that the market is uncompetitive and that PPI sales

are between £2.2 billion and £2.6 billion a year .

 

 

The Commissions working paper concludes that :

“The Personal Loans business has suffered from declining profits in recent years to the

point where in 2006 it appears to have been loss making before taking into account income

from PPI, with PPI included the sector appeared to have been marginally profitable this

appears to be a recent phenomenon the evidence suggests that prior to 2005 the Personal

Loan sector was profitable even without PPI income.”adding “When viewed as an add on

product PPI distribution is highly profitable, distributors earn a high proportion of the

total income from PPI premiums and in comparison the additional costs incurred in selling

PPI are low”

 

 

In fact lenders selling PPI can expect to earn £1,200 from a policy that costs £20.00 to

provide.

 

 

As of January 2009 the Competition Commission has announced a ban on the sale of PPI

during the sale of a credit product and for a period of seven days thereafter .

 

 

In a newly published report the body states that the majority of the UK,s 12 Million PPI

policies have been sold along side Credit Agreements of one kind or another with consumers

frequently unaware that they could buy PPI from other providers .

 

 

FSA Ban on Single Premium

In February following on from the outcome of the Competition Commissions remedy report

FSA sent a clear letter to all firms selling single premium Payment Protection Insurance.

With Unsecured Personal Loans, the letter follows on from the voluntary decision taken by

moneylenders to stop selling Single Premium PPI back in January 2009.

FSA imposed a deadline on firms: by the 29th May 2009 firms must stop selling Single Premium

Payment Protection Insurance .

 

 

A recent judgement at South Shields County Court may have far reaching effects not only for

pre-2007 Consumer Credit Act agreements but also for Consumer Credit agreements under the

new 2006 legislation

The case which was brought against MBNA in respect of an alleged credit card debt was decided for the claimant predominantly because MBNA were unable to provide a true copy of the original creditcard agreement. This is very established law and causes no surprises as this principle has been often tested since 1974. In fact the only real surprise is that MBNA decided to defend the case at all

What is particularly significant about this case is that there had also been mis-selling of Personal Protection Insurance (PPI).

The judge referred to this aspect of the case in her judgement and decided there had been an unfair relationship between the claimant and MBNA because of the way she had been sold payment protection insurance

 

Page 3

3

This case is highly significant for claims brought under the old 1974 legislation because it adds another important basis upon which Consumer Credit Act agreements may be rendered unenforceable. This is in addition to the very much more usual ground for an enforceability that the agreement is flawed in some way because it is not properly executed, or that a true copy cannot be produced by the lender.

 

It now seems highly likely that even where an agreement seems to be properly executed, if the agreement has been accompanied by

PPI which has been mis-sold, this mis-selling itself is a basis upon which to vitiate the entire loan agreement.

 

This principle that a Missold insurance policy is capable of tainting and invalidating the entire agreement is likely to become a very dominant feature in challenges to Consumer Credit Act agreements which have been concluded under the new 2006 legislation.

 

Whereas the 1974 legislation required very strict adherence to highly detailed requirements in any agreement, as well as requiring a fair and balanced relationship between the contracting parties, the 2006 Act is not so concerned with the form of the agreement and whether all of the I's have been dotted and the T's crossed. The entire focus of the 2006 legislation is upon the relationship between the lender and the borrower and seeks merely to ensure that there is a fair, balanced, transparent and nonabusive relationship between them.

 

The decision at South Shields County Court suggests very strongly that where an apparently fair agreement is accompanied by mis-selling of

PPI, then that mis-selling may well be taken as evidence that the lender has exercised an unfair relationship and has therefore tainted the entire loan agreement.

 

This seems to be an entirely satisfactory state of affairs and is probably a very necessary style of reasoning in order to serve as a very strict warning to lenders to do not conduct themselves properly that the consequences for them will be severe.

 

 

 

Of course, this was only a County Court Decision. It would need to be decided at High Court or Court of Appeal level to become completely authoratative.Would any finance company dare go to the senior courts and risk a binding decision which would destroy the millions made out of loanagreement tied to [problem]

PPI deals?Unlikely, but on the other hand we have seen for years now that the finance industry are incapable of thinking strategically when it comes to litigating against their customers.

 

It is only this kind of far reaching decision that is likely to drum home a properly-learned lesson into the mindset of the finance industry.

 

If you rip off your customers in anyway, then the consequences may well be that you will lose far more than merely a refund of premiums.

 

 

 

 

 

 

I need some help please dont know how to finish this or where to put

the interest figures

 

I have to go and feed some skittlers shortly

 

thanks for helping im in a haze now Tonks:)

 

 

[Tonka99]

Hello Andy

 

Im back now their all eating:cool:

 

Im very worried that i wont be able to get this

correct for tomorrow , was up till 6 this morning

and am flagging badly now .

 

So glad your here

 

Tonks:)

[Tonka99]

:!:Hello

 

I am in need of some help with the Part 20 claim form

Andy is not around I think he is having a few problems

with his PC .

 

So Im in need of some assitance from you all I have to

get this to court by 4pm today which means i have to

leave here by 2.45pm

 

 

Many Thanks for looking

 

Tonks:)

[AndyOrch]

Hi Tonks just managed to get on line,dont know how long for.

 

Ok what are you needing with the above?

 

 

Regards

 

Andy

[AndyOrch]

Hi Tonka this is one i used for another poster you made need to edit to suit but it will give you the general idea

Part 20 Claim

 

The defendant/Part 20 claimant intends to claim sums paid to the claimant /Part 20 defendant in relation to a Payment Protection Insurance policy, sold by the claimant/Part 20 defendant to the defendant/Part 20 claimantwithout qualification or appropriate advice as required by the Financial Services Authority et al. The claimant/Part 20 defendant acted as agent/broker on behalf of the insurance company issuing the policy to the detriment of the defendant/Part 20 claimant.

 

6.The defendant/Part 20 claimant refers to As a consequence of the claimants/Part 20 defendants failure and/or refusal to provide documents, the defendant/Part 20 claimant is unable to plead the Part 20 claim with particularity.

 

And the defendant/Part 20 claimant claims:-

 

i) An order requiring the claimant/Part 20 defendant to disclose statements of account covering the entire period of the alleged agreement and a copy of the alleged agreement.

 

ii) Damages limited to £5,000.00

iii) Interest pursuant to Section 64 of the County Courts act 1984 at the rate of 8% per annum until judgment or further order or such other sum as the court thinks fit.

 

I trust the above is ok for you

 

Regards

 

Andy

[Tonka99]

Hi Andy

 

I have the part 20 claim form half filled

out is that what i need to put in the

breif details of claim

T:)

[AndyOrch]

Well you can use the legal wording if it helps or you can just go with what you are comfortable with,but that is how a Part 20 should read.Dont forget the damage referal I have restricted it to 5K.

 

Andy

[Tonka99]

Andy

 

Sorry im being thick i think

am I to use the HM Courts claim form

[AndyOrch]

You can use their form or you can lay it out as above attached to your A/D either really Tonks.

 

Andy

Edited October 6, 2009 by Andyorch

[Tonka99]

Thanks :)Andy

 

Will use my own do i have to send **** a copy

or will the courts do that

 

T:)

[AndyOrch]

Check with the DJ order of xxxxxx but i would send them a copy irrespective.

You ok with everything now Tonks?

 

Regards

Andy

[Tonka99]

Andy

Just printing out the Part 20 bits do i just then put them

 

with the other claim pages and put the whole lot in with

AD

 

What figure should i use for the claim

 

Very many thanks have a large glass of something

with me

 

Just printing out

[AndyOrch]

Andy

Just printing out the Part 20 bits do i just then put them

 

with the other claim pages and put the whole lot in with

AD Yes

 

What figure should i use for the claim I would suggest your premiums made against the PPI or if unknown the total PPI added to the loan dont add the damages as that is at the DJ discretion

 

Very many thanks have a large glass of something

with me

 

Just printing out

 

Ok Tonks I have to leave shortly so if theres anything else, now would be appropiate

 

 

Regards

 

Andy

[Tonka99]

Ok Andy

 

Very many thanks will be away soon

 

Tonks:)

[MandM]

Watching with interest. I wish you luck.

[MandM]

Any newsTonks?

 

M

[Tonka99]

Hello Andy & all:)

 

Update

 

I have today received two letters from ****

one dated 13th Oct & sent by UK Mail the other dated 20th Oct

sent by Royal Mail .

 

Had a letter from the court begining of last week Standard order for

failure to file listing Questionnaires.

The claimant having failed to file a completed listing questionnaire

and paid the fees (£600.00) by the date required.

A Proper Officer has ordered that this claim be struck out unless

the completed LQ & fees are filed with the court by the claimant

by 20th Oct .

They filed yesterday

 

Anyway back to the letters of today first one

 

Without Prejudice offer made under part 36 of the CPR

offer made 13th Oct .

The claimant accepts that the PPI policy COULD have been mis sold

and this offer is specifically in settlement of your counter/claim

Upon accepting this offer within the time you will become liable

for our costs up to the date you serve Notice of Acceptance

lots of waffle about them getting a judgement ect

then " if you require further clarification of this offer you may no later

than 21st Oct request that we provide such clarification".like TODAY:rolleyes:

 

If you accept this offer it will amount to a settlement of the C/C the

claimant will however continue with their claim for the remainder of the balance outstanding less the amount of refund mentioned above

 

 

What it really says is we will pay you a pittance and get you in court.

 

 

The second letter was their pre trial checklist

 

with a Case Summary would that be their defence

 

Anyway that is where we are

 

 

Thanks for looking

 

Tonks:)