Lloyds TSB ccj

[lafey]

the judge seemed to think if it was a round the desk thing like today then it would be ok but if its in open court the judges arent always keen on people having a lay representative

[citizenB]

Sounds like you held your end up ok, lafey. Well done.

[lafey]

have to have ammended defence in by next friday ... i am going to start work on it in a bit my main points for defence are .

 

1) original t and cs not kept . 3 attempts to provide what they say would have been the original t and cs but i have proved each one cant be

 

2) account number is different from that on the agreement and they cant prove that it has been transferred

 

3) we did not receive DN . Have correspondance from them stating two different addresses to which they claim to have sent it . They cant produce original ( naughty naughty ).

 

4) the 6 years of statements they have sent show not one single purchase .. just interest and charges so they cannot prove what the debt constitues .

 

my question is ... should the defence just be these points and the relevant laws etc etc or is there anything else i need to put in ??

[supasnooper]

If there is a relevant law that you can use for your defence, then use it.

 

For example, as a creditor is obliged under s87/88 Consumer Credit Act 1974 to send a Default Notice before they can terminate an account and then pursue legal proceedings.

 

So, for point 3, you may state something along the lines of

 

The claimant has so far failed to serve or provide me with a compliant Default Notice for the alleged account as required under s87/88 Consumer Credit Act 1974.

If the claimant avers otherwise, I put them to strict proof of the documents initial production and to its proof of service.

 

Print off s87/88 CCA1974 and attach to your defence.

[lafey]

thanks supa .. will include the laws where i can see they are needed .... one point i have been thinking about ... everytime so far i have proved one of their computer prinouts to be wrong they seem to come up with another one saying " we really meant this !! " . i did read somewhere that if they want to rely on computer printouts then they have to be able to provide audits for who produced them etc ... is this under CPR ?

[citizenB]

I would think you could challenge new evidence being submitted where it hasnt been seen by you.

 

Also.. if they have one computer printout saying one thing.. how could it suddenly be something different ? I am not sure about the CPR though, I am sure snoops will be back to keep an eye on you.

 

[lafey]

thanks citizen ... i think its gonna be important we get this bit right ... they have tried 3 sets of tand cs so far ... and the last one i can prove could not have been for the original agreement ... and as fas as the account number goes they produced a computer printout at the sj that they said proved that the original acc no was transferred to the current one but on their print out it actually shows it being transferred to a 3rd account number which no one has ever mentioned ( which really pleased their local agent when i pointed it out to him in front of the judge !! ) ... just worried now they will say " oh no that was yet another mistake ... here is the real print out " .... ive a good mind to bring my own computer printout saying that we paid them 40grand last year and can we have it back please !!

[citizenB]

thanks citizen ... i think its gonna be important we get this bit right ... they have tried 3 sets of tand cs so far ... and the last one i can prove could not have been for the original agreement ... and as fas as the account number goes they produced a computer printout at the sj that they said proved that the original acc no was transferred to the current one but on their print out it actually shows it being transferred to a 3rd account number which no one has ever mentioned ( which really pleased their local agent when i pointed it out to him in front of the judge !! ) ... just worried now they will say " oh no that was yet another mistake ... here is the real print out " .... ive a good mind to bring my own computer printout saying that we paid them 40grand last year and can we have it back please !!

 

 

 

Dont forget you will want the interest on the £40,000 ! If they transferred the account from to another then there should be a record of it and the reason why. According to them, in a letter to me they say they upgraded their internal computer systems around October 2007 and have no telephone or diary events prior to that date ??

[lafey]

well that will be good news then because this is supposed to have happened in 2001/2 althought they cant even provide an accurate date for when it happened ..... hopefully they wont be able to explain this third account number ...... ( we are at a loss too ) ... but it goes in our favour and very much muddies their waters

[supasnooper]

If, as you say, they have provided so much documentation that is ficticious, then lay it all out for the judge to examine.

 

Invite the judge to inspect the documents, then question the Claimant as to which is the proper documention.

 

You could possibly invite the judge to invoke CPR 31.23 which covers false disclosure statements

 

CPR 31.23

 

(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth.

 

(2) Proceedings under this rule may be brought only –

(a) by the Attorney General; or

 

(b) with the permission of the court.

 

 

 

 

You may wish to also look at serving a Notice to Prove (Form N268 ) the agreement asap

[citizenB]

Documents in Court - Civil Evidence Act 1995

 

HTH

[lafey]

hi all ... have had a nightmare with wisdom tooth infection so am a bit behind !! .. have to have the defence with the court by friday .... below is what i am thinking of as an ammended defence ... I wonder if you could cast your everhelpful eyes over it and see if it will suffice ... also is there any case law of reulations in force for someone having to prove the debt as in my last few point ?? have to send it off tomorrow by specila delivery to get to court on time so any comments really appreciated :

 

 

 

 

In the xxxxxxxxxxxx Court

 

 

Claim No: xxxxxxxx

 

 

 

 

 

Lloyds TSB Bank PLC

 

 

V

Mrs lafey

 

 

 

Defence

 

1. I am Mrs lafey, the defendant in the above case

 

Credit Agreement

 

2. The form provided purporting to be a credit agreement is clearly headed APPLICATION FORM and is therefore not a credit agreement regulated under the Consumer Credit Act 1974.

 

3. The APPLICATION FORM provided is for a different account to that listed on the P.O.C. The defendant avers that there is no valid and regulated agreement pursuant to the Consumer Credit Act 1974 for the Account mentioned in the P.O.C.

 

4. The prescribed terms and condition required by the Consumer Credit Act are not contained within the APPLICATION FORM which has the effect that, even if the APPLICATION FORM were a proper agreement is it not properly executed.

5.The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 12 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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

6.I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” 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.”

7. The defendant puts the claimant to strict proof that a document for the correct account number containing all the prescribed terms exits and would ask them to provide the original of any such document for the Court’s consideration.

 

Default Notice

 

8. It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

 

9. I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

10.Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

11. For the avoidance of doubt it is requested that a copy of the Original Default Notice be provided by the Claimant for the Court’s Consideration.

 

 

 

 

Nature of Debt

12. The claimant has not provided the defendant with any information as to how it is alleged that this debt came into being.

13.I put the defendant to strict proof as to the nature and amount of debt and respectfully request that the Court be presented with a full breakdown of how the figure claimed in the P.O.C is calculated ( to include a separate figure for interest charges , penalty charges and any insurances that were relevant to the account )

14. It is averred by the defendant that before any debt can be enforced then the true nature and make up of that debt be established.

[lafey]

sorry to bump .. will have to print it out and get it sent off soon ... what do you think ???

[babybear39]

I've flagged your post for a memeber of the site team to look at for you.

[lafey]

thankyou babybear .. dont want to seem to be bothering people but could do with wrapping up tonight as will prob have to get it to court tomorrow ( as well as having wisdom tooth out !! ) lol

[babybear39]

If you haven't got any help in an hour or two, press the red triangle on your post and follow the instructions to ask again

[supasnooper]

The content looks fine to me but may I suggest a few amendments.

 

1/. Change POC to Particulars of Claim.

 

2/. Make sure you put a Statement of Truth at the bottom of the defence.

 

3/. Put brackets around Kpohraror v Woolwich Building Society [1996] 4 All ER 119

[lafey]

will make the ammendments you suggested .. thanks for looking supa x

[citizenB]

Sorry to hear you have had toothache..

Edited December 2, 2009 by citizenB
comments irrelevant, supasnooper beat me to it. :)

[lafey]

thank you citizen .. hopefully all will be well after tomorrow .. having the offending wisdom tooth exterminated !!! ..... paint in the tooth gone ... and hopefully in a few months ill get rid of the pain in the arse too

[citizenB]

[citizenB]

lafey, the following information may be of use to you at some point. It is a defence that has been written purely for an invalid default notice. I has the postal regulations etc.

 

 

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[lafey]

thanks for that citizen ... have used some of it in the defence .. rest of it makes good reading though .... definately some more things i can use ... i have sort of made my defence as brief as possible on purpose while still making the main points .... i have at least one thing up my sleeve that i dont want them to have wind of ( even though they have provided the evidence) lol !!

[citizenB]

Yes, judges like brief defences:) It is also good if you dont feel confident enough to spout great tracts of law. I would be going with something along the lines of what you have decided on.

 

Everything is covered which is good.

[lafey]

thanks for that !! i was worried that the truck full of pain killers may have completely numbed my brain !!! .. i actualyl sat down twice before to do it and fell asleep !! al least i got a couple of weeks before my disclosure list has to be in ( think your help may be required again on that )