Tesco Personnel Finance

[Pumpkinhead]

The Tesco saga continues, they have now sent me a default notice. I have replied protesting that they are not entitled to do this as account in dispute as documents they've sent me do not comply with the required legislation of the CCA. I am also writing letter of complaint to Trading Standards. Is there any thing else I should be doing at this stage? My docs are the same as Basas.

 

Any thoughts on what they might do next??

[basa48]

Today, I have recieved a letter from Tesco Personal Finance stating that they have terminated the account as I have not met the conditions of the default notice. Asked to destroy the card and contact at arrange methods of payment.

 

I was about to say I got one of those but it was from some other CCC !!

 

I got my SAR reply ....... same agreement as from the CCA .

 

Funny thing is they've also sent another separate page with all the prescribed terms and T&Cs on. I presumed at one stage they were going to make out that was the reverse side of the application .. a la MBNA.

 

The funnier thing is they've sent it with my current credit limit and the latest interest rates (a staggering 20%).

 

Did you say your agreement is like mine i.e. an application? Was it a genuine Default Notice in the correct form?

 

I'm not sure what I would do because if you reply saying why they are in default it might stop them doing anything and your default remains indefinitely.

 

I would probably sit tight and do nothing. That'll make them nervous, especially if they know the strength of your case. Mind you I'm not sure how bright the collections monkeys are.

[basa48]

Today I recieve a letter from Triton Credit Services demanding immediate payment.

 

Ha ..... Tesco have passed the debt on (or just asked their tame monkeys to try to get their money back). Either way in most cases it demonstrates they don't think they've a hope and don't want to waste the time.

 

Ask Triton for a copy of a compliant CCA.

[basa48]

Well I've got my agreement from Tesco from both s.78 and SAR.

 

Both are just an application form and a separate page of terms. (I know they aren't the ones with the original application because they state the current credit limit and interest rates).

 

I have written asking them to confirm where I can find the prescribed terms on the document they have supplied and if they can't tell me will they mark the account as settled and return the money they have charged for default charges over the years.

 

Let's see how they respond.

 

Letter before action and PoC in preparation. 8)

[katedog]

subing....

 

i got the same application form from tesco.

 

i wrote back telling them they'd not complied and made a secoond request for cca under the pre trial disclosure rules and added account in dispute not paying anymore.

 

to date no reply but will keep you updated.

 

any updates on your progress would be appreciated.

[basa48]

subing....

 

i got the same application form from tesco.

 

i wrote back telling them they'd not complied and made a secoond request for cca under the pre trial disclosure rules and added account in dispute not paying anymore.

 

to date no reply but will keep you updated.

 

any updates on your progress would be appreciated.

 

DN received some time ago, LBA sent and PoC in preparation.

 

As there are no PTs on the agreement/application I shall be going for s.59 void or s.61/127 unenforceable.

[Archiem]

I believe that Tescos are administered by Natwest, strangely enough I cca both, Natwest sent back unsigned terms and condition etc much the same as you have with Tescos, whilst Tesco's said they don't have a CCA and the debt is unenforcible, but I must still pay, I said its in dispute because I don't have a CCA, they said, don't write again.

 

The letter from Natwest and Tescos were both signed by the same person, so I assume that Natwest have convinced Tescos that if they don't have a CCA just bodge one up like Natwest.

[basa48]

Update:

 

No response to my LBA so the claim goes in Monday/Tuesday citing s.59 and s.61. I've asked for void or unenforceable, removal of DN plus damages for same, return of default charges and costs.

[katedog]

Hi all

 

Any updates???????????????

[basa48]

Hi all

 

Any updates???????????????

 

Not yet unfortunately, I've had no reply from the court that my claim has been served despite them cashing my cheque a week ago.

[Howler14]

Turn up for the books here, I have found my original new credit card pack for Tesco. It bear no relationship what so ever to the information they sent me.

[peter1234]

Hi Howler

I am interested to know if Triton have passed on your account and if you responded to their original letter and how

 

have just received 1st letter from Triton trying to draft up a response

 

thanks

[Howler14]

Well I took the approach of totally ignoring anything that didn't come from Tesco Personal Finance.

 

May to July was Triton, starting with the payment demand, and progressing to the notice of legal proceedings but never anything more than a letter or phone call (which I just hang up to).

 

In August we had the Green and Co solicitors letter, ignored this too. This stated they were going to commence court proceedings, nothing yet. According to the Law Society these don't exist, interesting.

 

Now we have Allied international Credit, these are idiots my account is with Tesco so they ask about an RBS account. They try the guilt trip approach, which if you have got this far doesn't wash. They have registered office in Basingstoke but operate out of Glasgow.

 

So far lots of letters and phone calls but no action.

[Howler14]

Recently sent a Subject Access Request to Tesco Personal Finance, they returned as I hadn't signed, do I sign or not....

 

The big question.

[basa48]

Recently sent a Subject Access Request to Tesco Personal Finance, they returned as I hadn't signed, do I sign or not....

 

The big question.

Standard practice is to sign over a row of 'xxx's' or 'ooo's' (or in my case the date). So it can't be lifted onto anything else.

 

It wouldn't stop me, so I use a fake sig (but not too fake - just enough to know and be able to prove its not my usual).

[diddydicky]

worth printing this out and keeping it - you can send a complimentary copy to them when it suits

 

particularly useful where there is an appl form and no prescribed terms and when they continue with action despite being advised pre court of their failings - re costs applications

 

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the　Civil Procedure　Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate

[atom02]

Subscibing to thread with interest as I was in exactly a similar situ with TPF, only I will be starting from so far back cos they already default claimed against me while I was abroad, and plaved CO on my property last year. I was completely ignorant of my rights under CC regs and only fought back with payment proposals which they ignored and just pursued me with impunity - value of debt, a meagre £2,700 which includes charges & interests.

Edited November 19, 2009 by atom02
to correct typo

[GhostDebt]

Hi howler.

Had our first letter off Triton today.

Going to send them the 'bemused' letter to start off with and see what happens

 

Regards

[diddydicky]

pussycats

[basa48]

pussycats

 

We should start a league table of the worst and easiest DCAs starting at pussycats right through to the hyenas.

[Howler14]

Interesting response recieved to a Subject Access Request. Tesco Personnel Finance have admitted in writing that my original application form is not available. This is now the second time they have done this.

[GhostDebt]

You lucky so and so

but then, have they got the agreement instead?

[diddydicky]

Interesting response recieved to a Subject Access Request. Tesco Personnel Finance have admitted in writing that my original application form is not available. This is now the second time they have done this.

 

then i'd write a letter to them (recorded delivery) referring them to their own admission and asking them to get in touch with you when they Do find it.

 

keep the copy safe and start clock watching!

[Howler14]

For Information there is no copy of any agreements, and no communications before may 2007.

 

I'm going to write to them, as many of the requested elements have not been supplied, so I'll add that the the letter too.

[tamarindo]

I received the exact same letter and enclosures from Tesco.

 

I have immediately sent them a 'dispute' letter and will be stopping my DDs.

 

It is an obviously unenforceable agreement since as I've said it doesn't contain ANY of the prescribed terms of CCA1974 and CC(Agreements) Regs 1983.

 

this is my 'agreement'

 

 

Hi

 

Very interesting to know more about this application form because a friend of mine received the same and for the same year BUT there not pre-scribed terms and conditions in it BUT do yours say at the bottom the following:

 

"agreed to be bound by the general conditions applying to the card as set out separately and the details about the card as set out overleaf.."

 

Unless the conditions were overleaf with the card details BUT in my friend's case it is blank and the DCA never mentioned it in the reply to a CCA request!!!

 

notice the underlined expression as if the conditions were not in the four corners of the same document at the time of signature!!! am I wrong or right?

 

 

Also the separate terms and conditions (2 pages) sent out are on landscape format a4 side papers and the application form like yours are in a portrait format!!

 

Your comment would be appreciated!!!

Edited January 15, 2010 by tamarindo