Lloyds TSB Platinum Card - Court Claim

[AndyOrch]

Andy

 

I am still not convinced that the simplistic approach is the correct route to take.I can only go from expierience and from what you have expierienced up to now

 

I am assuming that their tactic for requesting an amended defence is so that they can tear it down piece by piece and go for a SJ They can go for that anytime during litigation proceedings usually at AQ but they have not

 

IMHO having a simplified defence means that each point is easier nullified by SCM and could well lead to a SJ being awarded by an inexperienced DJ before it ever reaches trial.They have to make application first and you can object

 

But perhaps i am wrong in my assumption, anyone else have any thoughts on this?

 

Draft the correct Defence that works and it wont get to trial

IMHO

Andy

[iOiO]

Draft the correct Defence that works and it wont get to trial

IMHO

Andy

 

OK Andy you have convinced me

 

Lets press on and see what we can come up with.

 

One last thing though, if I do not raise in my defence other flaws in the case against me that I am currently aware of, would I still be able to raise them later in say my skeleton argument before trial?

[AndyOrch]

Of course there are many ways to play the litigation game,the purpose of your defence is to refute the Claimats P.O.C point by point.Dosent matter if the DJ accepts or not.The Claimant must justify their claim also.

 

Back shortly

 

Andy

[AndyOrch]

Well I got it down to 6 (although I would like to add more)

 

1. CCA disclosed is not for the account pleaded in POC 2

2. In any event CCA provided is illegible 1

3. In any event CCA provided bears no bank Signature 3

4. No DN received nor copy supplied 5

5. No FD received nor copy supplied 6

6. Clauses stated in the POC do not appear in the CCA T&C’s supplied 4

 

 

 

Ok now we put them in order of priority

 

Lets also look at the P.O.C:-

 

1. By an agreement in writing & regulated by the Consumer Credit Act 1974, the Claimants issue to the Defendant a Lloyds TSB Platinum Card, for the purpose of the Defendant acquiring goods/service on credit.Account Number?

2. Clause 7 of the agreement What agreement is it refered to in the and accepted in the Sig page? provided that the Claimants would furnish the Defendant with a monthly statement showing the balance currently due, the minimum payment to be made & the date for payment. If the balance was not paid, then provided the Defendant made the minimum payment on or before such date, the remainder of the balance should remain outstanding & the Defendant should pay interest upon it per month in accordance with clauses 5, 6 & 9 of the agreement.see above

3. In breaching the agreement, the Defendant failed to make payment & on xx/04/08 the Claimants issued a Default Notice pursuant to section 87(i) of the Consumer Credit Act 1974 Is it valid perscribed layout/form prove it was sent

4. On xx/05/08 the Claimants did issue a Formal Demand to the Defendant.Again any proof

5. THE CLAIMANTS THEREFORE CLAIM THE BALANCE DUE UNDER THE AGREEMENT

 

I am assuming that there is no unfair charges or PPI involved ?

 

Regards

 

Andy

Edited September 23, 2009 by Andyorch

[iOiO]

 

I am assuming that there is no unfair charges or PPI involved ?

 

Regards

 

Andy

 

No PPI involved but we have already spoken about unfair charges relating to this account earlier on today??

[AndyOrch]

To date with compound interest £275.75

 

 

Apologies IOIO tas been along day and 70 posts later:cool:

 

Andy

[AndyOrch]

Ok lets bring up X20s amended short defence and use it as a draft:-

 

 

IN THE XXXXXXXXXX COUNTY COURT

 

Case No:

 

BETWEEN:

 

Lloyds TSB PLC

Claimant

and

(Name)

Defendant

 

 

AMENDED DEFENCE

 

 

1 The following paragraphs of this Amended Defence are in substitution for the contents of the Defence dated (xx xx xx) in its entirety.

 

2 The Defendant admits having entering into an agreement for a Visa Card in writing with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). The Defendant denies that the agreement was of the kind pleaded at paragraph 1 of the Particulars of Claim and contends that by the said agreement the same provided for the Defendant to be issued with a TSB Lloyds Platinum Card. Further and alternatively, that the agreement was improperly executed and/or is unenforceable in whole or in part.Said agreement not being signed and is mostly Illegible.Regulation 2 of the Consumer Credit Cancellation notices and Copies of Documents Regulations 1983

 

 

3 No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith.The Terms and Conditions pleaded by the Claimant in paragraph 2 of the Pariculars of Claim bear no relation to the agreement refered to.

 

4.On the XXXXXXXXXXXX I wrote to Lloyds TSB Bank plc requesting a copy of the Credit Agreement relating to Credit Card number XXXXXXXXXXXX Visa Card not Masterecard pursuant to section 78(1) of the Consumer Credit Act 1974. Lloyds TSB Bank plc replied to my request in a letter dated XXXXXXXXXXXX stating “We have contacted our Credit Card division and requested they check their records again for any data held under Credit Card number XXXXXXXXXXXXXXX, they have confirmed nothing found". As such no Credit Agreement relating to that account was supplied and therefore the Claimant remains in default of my request

 

5 It is denied that on xx April 2008 the Claimant issued a default notice pursuant to section 87(1) of The Act.

 

6 It is further denied (if it be alleged) that on xx April 08 or on any day following, the Claimant served upon the Defendant a default notice or default notice in prescribed form and complying with the provisions of section 88 of the Act.Failure of a Default Notice to be accurate not only invalidates the Default Notice but is a unlawful rescission of contract

 

7 Without prejudice to the generality of the Defendant’s contentions set out at paragraph 2, on or before XX XX XX the Claimant terminated the agreement.

 

8 It is admitted that on xx May 2008 the Claimant made demand of the Defendant for the payment of money the subject of this claim.

 

9 Incorporated within the sum demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment. The Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

10 Further and in any event, by reason of the matters set out at paragraphs 3 and 4 above and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraphs 6 and 7 hereof were steps which the Claimant was not entitled to take.

 

11 In the circumstances the Claimant’s termination of the agreement on or before xx xx 08 did not give rise to an entitlement to claim any of the relief now sought by the Claimant.

 

12. The Claimant’s claim to be entitled to £xxxxxxxx or any other sum is denied.

 

 

I BELIEVE THAT THE CONTENTS OF THIS AMENDED DEFENCE ARE TRUE.

Edited September 24, 2009 by Andyorch

[AndyOrch]

Ok IOIO

 

I will edit the above to include your points and get this finished for tomorrow feel free to add/disagree afterall you will be pleading this.

 

Regards

 

Andy

[iOiO]

Cheers Andy

 

Dont know whether you missed it but can you answer this question posed a couple of posts back

 

One last thing though, if I do not raise in my defence other flaws in the case against me that I am currently aware of, would I still be able to raise them later in say my skeleton argument before trial?

 

Also another thing I have just noticed is that my POC states that a Formal Demand was issued on xx/05/08 if that is true then at that point in time I presume the agreement they thought they had had ended, however I note that statements were still being sent and interest applied all the way up to mid August 2008

[AndyOrch]

Post 128 IOIO

 

Keep looking at the P.O.C you will see further discrepencies, the above you state must be included in your defence

 

Regrads

 

Andy

[iOiO]

I have as a result of my DSAR a list of Memoline Transactions from their Collections Department stating the account was closed on 10/06/08

 

I also have a sworn statement from LTSB stating the account was closed on 13/08/08

 

So we have three dates including the formal demand which it is alleged in the POC's was sent on 14/05/08

 

Is that a rat I smell?

[AndyOrch]

Its amazing what you find when the haze has disappeared,concentrate on the facts you can prove and fight.Perhaps the Claimant should re present their P.O.C rather than you prove your Defence;)

 

Andy

[iOiO]

Good morning Andy, i notice you are online

 

Time is running really tight on this one and I really need to get this concluded by 4pm at the latest today, hopefully you will have some time to spare me.

[AndyOrch]

Morning IOIO

 

Just having my latte fix and clear the post and we will sort it.

 

 

Andy

[iOiO]

Much appreciated

[AndyOrch]

Ok lets bring up X20s amended short defence and use it as a draft:-

 

 

IN THE XXXXXXXXXX COUNTY COURT

 

Case No:

 

BETWEEN:

 

Lloyds TSB PLC

Claimant

and

(Name)

Defendant

 

 

AMENDED DEFENCE

 

 

1 The following paragraphs of this Amended Defence are in substitution for the contents of the Defence dated (xx xx xx) in its entirety.

 

2 The Defendant admits having entering into an agreement for a Visa Card in writing with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). The Defendant denies that the agreement was of the kind pleaded at paragraph 1 of the Particulars of Claim and contends that the CCA produced in evidence to support this claim is infact an application for Visa and not Mastercard and furthermore refers to a different account held. Further and alternatively, that the agreement was improperly executed and/or is unenforceable in whole or in part.Said agreement not being signed and is mostly Illegible.Regulation 2 of the Consumer Credit Cancellation notices and Copies of Documents Regulations 1983

 

 

3 No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith.The Terms and Conditions pleaded by the Claimant in paragraph 2 of the Pariculars of Claim bear no relation to the agreement refered to.

 

4.On the XXXXXXXXXXXX I wrote to Lloyds TSB Bank plc requesting a copy of the Credit Agreement relating to Credit Card number XXXXXXXXXXXX Visa Card not Masterecard pursuant to section 78(1) of the Consumer Credit Act 1974. Lloyds TSB Bank plc replied to my request in a letter dated XXXXXXXXXXXX stating “We have contacted our Credit Card division and requested they check their records again for any data held under Credit Card number XXXXXXXXXXXXXXX, they have confirmed nothing found". As such no Credit Agreement relating to that account was supplied and therefore the Claimant remains in default of my request

 

5 It is denied that on xx April 2008 the Claimant issued a default notice pursuant to section 87(1) of The Act.

 

6 It is further denied (if it be alleged) that on xx April 08 or on any day following, the Claimant served upon the Defendant a default notice or default notice in prescribed form and complying with the provisions of section 88 of the Act.Failure of a Default Notice to be accurate not only invalidates the Default Notice but is a unlawful rescission of contract

 

7 Without prejudice to the generality of the Defendant’s contentions set out at paragraph 2, on or before XX XX XX the Claimant terminated the agreement.

 

8 It is admitted that on xx May 2008 the Claimant made demand of the Defendant for the payment of money the subject of this claim.

 

9 Incorporated within the sum demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment. The Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

10 Further and in any event, by reason of the matters set out at paragraphs 3 and 4 above and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraphs 6 and 7 hereof were steps which the Claimant was not entitled to take.

 

11 In the circumstances the Claimant’s termination of the agreement on or before xx xx 08 did not give rise to an entitlement to claim any of the relief now sought by the Claimant.

 

12. The Claimant’s claim to be entitled to £xxxxxxxx or any other sum is denied.

 

 

I BELIEVE THAT THE CONTENTS OF THIS AMENDED DEFENCE ARE TRUE.

 

OK IOIO you need to check the dates.

 

Regards

 

Andy

Edited September 24, 2009 by Andyorch

[iOiO]

OK cheers Andy

 

On first impressions I note that clause 8 and 9 will need to be modified as I never actually received a Formal Demand

 

I have also been doing a little work on this defence myself and have come up the following, do you think it will be useful to add (even if ammended)?

 

 

Further to the case, in an attempt to ascertain what grounds the Claimant had in bringing this action and to allow me to prepare my defence I requested on xx March 2009 the disclosure of information vital to this case, pursuant to the Civil Procedure Rules 31.14 from the claimant. The information requested amounted to copies of the Credit Agreement relating to account number 2222222222 referred to in the particulars of claim and the Default Notice and Formal Demand also cited therein. To date the Claimant has ignored my request and I have not received any of the documentation requested under this CPR 31.14 request. As a result it has proven difficult to compose this defence without disclosure of the information requested. The Claimant have however as a result of the submission of my initial defence, produced what they allege to be a Consumer Credit Agreement but unfortunately this was for a previous account numbered 11111111 which is not relevant to this claim.

Edited September 24, 2009 by iOiO

[AndyOrch]

4. On xx/05/08 the Claimants did issue a Formal Demand to the Defendant

 

 

Refute the PoC then and put them to strict proof also refer to the 3 dates they terminated it.Which is the correct date and also the fact that the DN is invalid so therefore the termination is also

 

Yes you can include your CPR request,however its not significant at this stage we want to destroy their case with fact of law not their failures with regards to CPR.

 

Andy

[iOiO]

No mention was made of the clause in the original agreement stating that “If your application is accepted by our signature and we send you a card, then this will form the agreement made between you, the Principle Cardholder, and us Lloyds TSB Bank plc” and no such signature is present.

 

I had previously composed the following which may be useful (even if only in part)

 

The Claimant has failed to produce a copy of an original agreement relating to account number 22222222 being pleaded under claim. They have however produced a document relating to account number 111111111. However, the document provided, if it is to be regarded as an agreement is fatally flawed in a number of areas Firstly in that it is in the main illegible contrary to xxxxxxxxxx. Secondly in that contained within the document supplied there is a clause that states “If your application is accepted by our signature and we send you a card, then this will form the agreement made between you, the Principle Cardholder, and us Lloyds TSB Bank plc” besides my own signature no other signature appears on the document and especially not in the area marked “Signature for Lloyds TSB Bank plc (Card Services)". Furthermore, it is also a requirement of the Consumer credit Act 1974 that for an agreement to be properly executed it should be signed by both parties, there is no cogent evidence of any execution of the alleged agreement by Lloyds TSB. In either event, the lack of such a signature on the part of Lloyds TSB means no agreement has been struck, rendering the alleged agreement unenforceable. Thirdly the document produced by the Claimant is further rendered unenforceable, by want of compliance with section 61(1)(a) of the Consumer Credit Act in that it must contain all of the “Prescribed terms”. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest. Pursuant to S127(3) Consumer Credit Act a failure to comply with S61(1)(a) and the prescribed terms requirements, additionally rendering the agreement unenforceable.

[AndyOrch]

Thats the point it was an application form not an agreement.They cant find the original Visa one so they switched it to a mastercard and sent that one.However its still an application as you confirm above.

keep focused on our converstion of last night try not to get too deep because this is where the DJ loses Direction and relies on the oppos barrister for direction.

An application form is an application form (even if its for the wrong card)they have to prove its not and that infact it is an agreement and the one that pertains to the debt in question.

 

Andy

[iOiO]

4. On xx/05/08 the Claimants did issue a Formal Demand to the Defendant

 

 

Refute the PoC then and put them to strict proof also refer to the 3 dates they terminated it.Which is the correct date and also the fact that the DN is invalid so therefore the termination is also

I would appreciate it if you can word this for me, my legalese is not that good, although I am learning fast

Yes you can include your CPR request,however its not significant at this stage we want to destroy their case with fact of law not their failures with regards to CPR. I thought it would be useful to add as it also serves to clarify the position with regards the missing agreement on account 22222222

 

Andy

 

iOiO

[iOiO]

Thats the point it was an application form not an agreement. Agreed it is an application form and by virtue of them not signing it it was never in fact converted to an Agreement "If your application is accepted by our signature and we send you a card, then this will form the agreement.........." I thought it important to add this to the defence as this may well make LTSB think twice about persuing this further.They cant find the original Visa one so they switched it to a mastercard and sent that one.However its still an application as you confirm above.

keep focused on our converstion of last night try not to get too deep because this is where the DJ loses Direction and relies on the oppos barrister for direction.

An application form is an application form (even if its for the wrong card)they have to prove its not and that infact it is an agreement and the one that pertains to the debt in question.

 

Andy

 

iOiO

[AndyOrch]

Post removed as requested by OP

 

Andy

Edited September 24, 2009 by Andyorch

[iOiO]

Another point is that as we never in fact entered into a valid agreement (even for the inital Visa card), clause 2 will need to be modified

[iOiO]

..