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

[Tonka99]

Nite Andy

 

Tonks:)

[Tonka99]

Hi Andy

 

If you have a spare slot , I would like to go update

 

Thanks

Tonks:)

[AndyOrch]

Hi Tonks

 

 

Ready when you are;)

 

 

Andy

[Tonka99]

Thanks Andy

 

I have been getting the Amended defence together , working

on the Agreement & D/N , how much info should i give regarding

**** & their behaviour

Do I need to bring into it the SJ hearing and the reasons why we

won .

 

 

As regards the Counter Claim PPI havent got a clue :-?

 

This needs to be in by Tuesday next week so I need to be

moving this along as I have a very busy W/E with the Business

comming up.

 

Cheers Tonks:)

[AndyOrch]

Thanks Andy

 

I have been getting the Amended defence together , working

on the Agreement & D/N , how much info should i give regarding

**** & their behaviour (dont get into tit for tat the DJ is well aware of their behaviour so far and given the benefit of doubt in your favour)Do I need to bring into it the SJ hearing and the reasons why we

won . Anything of major significance (because Applic SJ was denied) may be included and relied upon.

 

If you could post up your draft so far Tonks would be helpful

 

 

As regards the Counter Claim PPI havent got a clue :-?

Not to worry lets get the Defence finalised first.I will need you to expand on the PPI refund referred to in the above posts.

 

This needs to be in by Tuesday next week so I need to be

moving this along as I have a very busy W/E with the Business

comming up.We havent missed a deadline yet Tonks

 

Cheers Tonks:)

 

 

Andy

[Tonka99]

Ok Andy

 

Cant post up defence yet as its still in notepad

 

The PPI refund well on CCA it says Cash Loan total charge for credit

£10,136.36

LPI Loan cash price £7,745.30

Total loan £13,276.62:eek: for something that was no earthly good .

 

If we add interest ect your talking about a lot of dosh

 

No we havent missed anything yet its just that I have A UNLESS Order

to consider

 

Thanks Andy

 

Tonks:)

[AndyOrch]

Ok Tonka

So in essence the PPI was miss sold and wrongly calculated and the difference readjusted? just spotted the refund thats all.

With regrards to the defence, what you now need to do is, in addition to your original defence is,now here is the important part you need to build on the errors of the Claimants,ie the failures to attain SD,try to reiterate the DJs thoughts on refusal.

 

Andy

[Tonka99]

Andy

 

Im lost :-?:-?

 

I am wanting to COUNTER CLAIM for mis sold PPI

 

The Specific Disclosure trial went like this They ****

didnt disclose their FWS before the case , in it was the

address of the Insurance agents and other bits which I

should have been given at Special diclosure weeks before hand

They brought along the Origianl Agreement which should have been

disclosed before as well , so in affect they had nothing left to offer

so no Order could be made by DJ .as it was said Lloyds have nothing

else to disclose .

 

Hope im making some sense

 

 

Tonks:)

[AndyOrch]

Why are you lost Tonka.

 

To counter claim on the PPI it has to of been miss sold,if so then you are reclaiming the premiums paid into the policy,which in effect reduces the overall debt and then hopefully deemed unenforcable.In effect then it becomes a plus to you as you should be refunded payments made within the PPI factor of the monthly payment.

 

Hope im making sense now;)

 

Andy

[Tonka99]

Ok Andy

 

Right so can i then mention this in my defence as this would surely

have made the D/N wrongly calulated for any arrears

 

How do i Counter Claim is there a form

 

Will i have to pay twice ie C/C & A/d to court

 

Im asking now as im aware your not around at W/E

 

Sorry if im being dim im getting a bit jittery:wink:

 

Thanks Andy

 

Tonks:)

[AndyOrch]

Hi Tonka major PC problems here

 

Ok in response to your above points.

Yes you can mention miss sold ppi within the defence.

The DN would only be wrong when the PPI is accepted as miss sold so steer clear for now.

 

There is no form we simply tag this on to the end of the Defence once we have a valid reason and figure we are counter claiming.

 

No you wont have to pay as you are adding this to your amended defence.

 

Finally I will be around this weekend if only to assist you Tonka in getting this right for Tuesday;)

 

 

Andy

[Tonka99]

Hi Andy

 

Had to go out back now & working tonight ,

 

Have been studying the t&c of PPI and am going to

write up all reasons ect soon as , that it was not

fit for purpose , the bit I dont get is how much to

claim , point taken about the refund althou this didnt

come to us it went into account when it was terminated.

 

If i finish early enough tonight I will try to get the defence

up for tomorrow .

Have been working hard behind the screen:wink: here all week

looking and noteing down bits that are going to be of use

to me

 

Really thankfull for your help as time goes on it just gets

better:p

 

 

Tonks:)

[Dorabell]

Hi Tonks i can see you still keeping Andy busy;) good luck

[anxious123]

subscribing

[Tonka99]

Hello Andy

 

Im in Panic Mode just realised i have to have the Pre - trial checklist

back at court tomorrow .

 

Im having a bit of trouble putting my Amended defence together cant find a

starting point , have got the middle bit done , dont know if my

embrassed defence is now void or can i use some of it .

 

It is really busy here and my time is running out will have to take the

PTclist over first thing 2 morrow

 

Thanks

 

Tonks:)

[Tonka99]

Hi Andy

 

this is what I have come up with so far

 

 

he xxxxx County Court

 

 

Claim No xxxxxx

 

 

Claimant Lloyds TSB Bank PLC

Defendant Tonka 99

 

 

 

 

Counter Claim

 

 

I Tonka 99 of xxxxx

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.

1

 

On the 14th October 2006 the defendant took out a Personal Loan with Lloyds TSB Bank PLC

account No xxxxxxxx

 

 

The Defendant was perused by the Banks representative to take LPI to ensure 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 took the word 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 able to claim for Unemployment ,Accident or Sickness benefit Hospitalisation Cover , which in fact left him with just a 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 of only lasted

him 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 may well have been able to afford

his monthly payments to continue 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 .

 

Dont know the format but hope its of some use now the defence

 

 

 

n the xxxxxxx County Court

Claim No xxxxxx

 

 

Claimant Lloyds TSB Bank PLC

 

 

Defendant Tonka 99

 

 

 

 

AMENDED DEFENCE

 

 

I Tonka99 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 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 xxxxxx 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 , this was indeed a document that did not have the defendants

private details visible where in fact the defendant was not using his real name, 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.

 

 

 

 

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,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 xxxxxx 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 Conclusion

 

 

Statement of truth

I Tonka99 believe the above statements to be true and factual

Signed this day 3rd October 2009

 

Now Page 3

 

Page 3

The Courts power of enforcement

 

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).

 

 

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

 

. With regards to the Authority cited on page 2 the judgement of TUCKEY LJ, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

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.

 

. 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.

 

These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

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

 

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 .0. 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.

Now page2

 

Page 2

 

 

The Importance of a copy of the credit agreement and its production before court

 

 

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

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)

 

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

 

. 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

 

 

. I refer to the judgement 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 judgement 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."

If the agreement does not contain these terms in the prescribed manner it does not comply with Section 60(1) CCA1974, the consequences of which means it is improperly executed and

only enforceable by court order.

 

 

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

 

Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in on page 2 of this amended defence to have any right of enforcement. I note that the claimant should also have provided this documentation prior to bringing this action.

 

 

now page4

Page 4

 

Conclusion

 

 

 

 

 

At the Summary Judgement Hearing held at xxxxxxCounty Court on the 21st July 2009 , Before Deputy District Judge xxxxxx

 

 

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 .

 

 

 

 

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 them.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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.

 

 

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.

 

 

 

 

 

 

Im off to bed now 05.35 hope you can make some sense of it all ,

 

ps need to get the Pre-check list off to court today Monday

 

 

Thanks a million

 

Tonks:)

[Josie8]

Sub

[citizenB]

Hi Andy

 

this is what I have come up with so far

 

 

he xxxxx County Court

 

 

Claim No xxxxxx

 

 

Claimant Lloyds TSB Bank PLC

Defendant Tonka 99

 

 

Counter Claim

 

 

I, Tonka 99 of xxxxx 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.

 

1 On the 14th October 2006 the defendant entered into a Personal Loan contract with Lloyds TSB Bank PLC account No xxxxxxxx

 

 

The Defendant was persuaded by the Banks representative to take out 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 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 revealedthat 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 incomefrom 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 .

 

Dont know the format but hope its of some use now the defence

 

 

 

n the xxxxxxx County Court

Claim No xxxxxx

 

 

Claimant Lloyds TSB Bank PLC

 

 

Defendant Tonka 99

 

 

 

 

AMENDED DEFENCE

 

 

I Tonka99 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 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 xxxxxx 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 , this was indeed a document that did not have the defendants private details visible where in fact the defendant was not using his real name, 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 .

 

(as this is 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)

 

 

8 At 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.

 

 

 

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 in which this 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 xxxxxx 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 Conclusion

 

 

Statement of truth

I Tonka99 believe the above statements to be true and factual

Signed this day 3rd October 2009

 

Now Page 3

 

Page 3

The Courts power of enforcement

 

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).

 

 

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

 

. With regards to the Authority cited on page 2 the judgement of TUCKEY LJ, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

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.

 

. 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.

 

These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

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

 

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 .0. 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.

Now page2

 

Page 2

 

 

The Importance of a copy of the credit agreement and its production before court

 

 

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

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)

 

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

 

. 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

 

 

. I refer to the judgement 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 judgement 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."

If the agreement does not contain these terms in the prescribed manner it does not comply with Section 60(1) CCA1974, the consequences of which means it is improperly executed and

only enforceable by court order.

 

 

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

 

Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in on page 2 of this amended defence to have any right of enforcement. I note that the claimant should also have provided this documentation prior to bringing this action.

 

 

now page4

Page 4

 

Conclusion

 

 

At the Summary Judgement Hearing held at xxxxxxCounty Court on the 21st July 2009 , Before Deputy District Judge xxxxxx

 

 

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 .

 

 

 

 

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 them.

 

 

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.

 

 

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.

 

 

 

 

 

 

Im off to bed now 05.35 hope you can make some sense of it all ,

 

ps need to get the Pre-check list off to court today Monday

 

 

Thanks a million

 

Tonks:)

 

 

Tonks, just a bit of proof reading and tidying up of a couple of sentences. I am afraid I cant provide any other assistance

[r&b]

 

 

 

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 took the word 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 .

 

also, this seems to contradict tonks?

[the_shadow]

Tonks,

 

You've stated about the 7 day ban on selling the PPI after the initial OFT investigation... might want to bolster that with the details of the total ban on them now...

 

FSA Ban on Single Premium

 

 

In February, following on from the outcome of the Competition Commissions remedy report, FSA sent a Dear CEO letter to all firms selling single premium PPI (PPI) with Unsecured Personal Loans. The letter follows on from the voluntary decision taken by many lenders to stop selling SP PPI back in January. FSA imposed a deadline on firms; by the 29 May 2009 firms must stop selling single premium PPI.

 

S.

[Tonka99]

Hello guys

 

Thanks for the tidy up Citz B:) it gets a bit fuzzy when its all

words and so on .

 

r&b OH was Self employed we have a Pub when the loan was

sold to him we had sold our last Pub & had no where to live, we

went to Cornwall for six months in a touring caravan so that was

what i ment no fixed address no job.

 

Thanks all advice needed I have to get this lot to court today:eek:

 

Tonks:)

[Tonka99]

Hi Shadow

 

Thanks for that will put that in more amo for the guns:p

 

Tonks

 

ps we have company

[AndyOrch]

Good Morning Tonks

 

Ok just going to whizz through what you have up to now,back shortly

 

 

Andy

[AndyOrch]

Just for you information Tonks dont know if you are aware but this will help to narrow down the argument and also add to your defence

 

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 Act 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 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.

 

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.

 

Andy

[AndyOrch]

I would advocate starting the amended defence with "in addition to my defence dated xxxx I will contend further etc etc" because nothing as really changed or been brought to the table to say or reflect otherwise.The introduction of the outcome of the SJ hearing and now the details of miss selling PPI which in all purposes and intent invalidates the whole agreement.

That being the case renders everything to zero and therefore would invalidate any Counterclaim also, to a degree.Therefore the counterclaim should contend that withview to the evidence above that either the the Loan is deemed enforcable or the PPI content and payments should be adjusted against the initial loan content.Which just enforces the above notes i have posted.

 

Regards

 

Andy