OH v BLS/LTSB

[citizenB]

Thank you very much. I was happily going along with the defence you had posted for me when I read a couple of very long 'embarrassed defences' and started to wonder (panic seems a bit strong:D)

 

Panic is good :lol:It is always best to ask if you are unsure:)

[citizenB]

'Following our Clients instructions in this matter, you advised that we have requested the County Court to enter Judgement against you. A Judgement Order detailing payment will therefore be sent to you by the Court in due course.

 

Meanwhile we enclose a Standing Order Mandate for your use. If you prefer this method of payment, please complete the form and send it direct to ourselves enduring that there are sufficient funds in your account to honour the Standing Order arrangements.

 

Please ensure payments are made in accordance wuith the Judgement Order to prevent enforcement proceedings, which will incure additional Court fees and Solicitor costs for which you may be liable.'

 

The Judgement Balance is also slightly higher than that on the CCC.

Are they trying to frighten us? Should we do something etc etc etc.

Thank you

 

Ps Haven't sent off N244 yet, due to funding and holiday commitments meaning won't be able to go to court with it.

 

Join the club, please have a read of the following thread. Please also make a complaint to the Solicitors Regulatory Authority.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/206823-have-you-received-phantom.html

 

Yes, **** are trying it on and should be stopped. They are not alone in this practice. It is misleading.

[citizenB]

I've also spoken to the court who said that they couldn't do that because a defence had been registered. Waiting for the 33 days.

 

Excellent, the more people complain about this practice the better.

[citizenB]

Hi letters of complaint were sent, no replies yet....... When the 33 days from when I filed a defence are up, what happens? Do I wait to hear from the court, or can I do anything pro-active?

Thank you

 

Umm, what 33 days..

 

The 33 days are those from the issue date on the claim form until you need to put in a defence. From then on it is up to LTSB to take it forward I think.

 

The next stage will be an AQ (allocation questionairre) this will be when a local court will be allocated and you can ask for directions from the court, ie you can ask them to order LTSB to provide docs you dont have, etc.

[citizenB]

Thank you, I have had a quick look, but have decided to concentrate on my other defence for the weekend:)

 

[citizenB]

duplicate post

 

duplicate post.....again

 

Surely that makes it a "triplicate" post:p:rolleyes:

[citizenB]

Hi does anyone hve any coments please?

 

Add to the Default notice paragraph,

 

"and any proof of posting"

 

Other than that, if it contains everything you want the otherside to produce then that looks good.

 

BTW, in the Witnesses, if you are going to give evidence then I think you need to stick [ 1 ] in the box. If you arent and it is just OH's case then put NONE.

 

Dont forget to head each of the draft direction/orders with all the details of the court, claim number, defendant and claimant

[citizenB]

thank you citb, just as you know **** are so slippery.......

 

 

like an eel

[citizenB]

I am right that I do not need to ask for these as it is LTSB claiming?

Thank you

 

Correct, as it is the original Creditor who is the claimant then it wont have been assigned.

[citizenB]

Right, well I dont seem to be able to find anything that is suitable, so how about this...

 

 

Dear Sirs,

 

I am in receipt of your letter dated (whenever).

 

 

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. All you have sent is a pre-contractual application form, which is barely legible and therefore not compliant with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557), your attention is drawn to regulation 2 (1) which sets out how copy documents must be presented.

 

 

"Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the ."

 

From what I can see, the document you have provided does not contain any prescribed terms. Nor have any historic terms and conditions been supplied.

 

I am therefore unable to assess if I have any liability as claimed by your client.

 

Yours faithfully,

 

Short and sweet.

 

This is the double sided reply to my CCA request.

http://i399.photobucket.com/albums/pp74/cymru_1/scan0022.jpg

http://i399.photobucket.com/albums/pp74/cymru_1/scan0023.jpg

 

Okey dokey, I brought forward some previous posts and the copy of what they claim is your agreement.

 

I would say you need to include the following quote..

 

 

Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

After all, how can you see if the prescribed terms are there if you are unable to read the document properly ??

[citizenB]

You might also find something of interest in the links provided in the post linked below.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2394247.html

 

HTH

[citizenB]

Looks ok to me, I would prefer for you to have someone like CCM, andyorch, X20, IGNM have a look but none of them seem to be online at the moment.

 

I have asked site team to look in on you.

 

When do you need to have this in by ?

[citizenB]

Ok, right well have a look at a "section H" (same as your section G) which Paul completed for Viano.. for an illegible document.

 

The post number is 164 in the following link

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/119668-lba-optima-leagal-services-17.html#post1387890

 

 

You might want to have a read of the whole thread, which is very interesting. posts 5, 39, 75 and 114 are relevant to you even though Viano's was a barclaycard. You will be pleased to learn that Viano has a SUCCESS sticker

 

 

 

 

 

N150 Allocation Questionnaire

 

Section H **- other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

The claimant has failed to date to supply a clearly legible compliant copy of the credit agreement which they seek to rely upon as the basis of this claim

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

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. 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 and63, section 127(4) precludes the court from making an enforcement order.

 

it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

HTH

[citizenB]

Thank you as ever citb.

I'm now ready with about 3 section Gs:confused: I'll print and post SD tomorrow afternoon, so I'll wait to see if anyone returns from their holidays and has anything to add.

This thinking should be banned, it's bad for my nerves

 

I'll agree with that

[citizenB]

I think they are talking a load of baloney; I was going to ignore this and just keep a copy for my court bundle and print any legislation I can find on witness statements and heresay. Does anyone think it's worth wsating postage on them?

 

IMHO, no it is not worth wasting the postage. They are trying it on.

[citizenB]

Thanks citb, one other question.......

'application form ...actually became a credit agreement when it was signed by both you and the bank'

Is this correct?

THank you

 

Not one I can answer, I'm afraid.. hopefully someone will pop in and advise:D

[citizenB]

No AQ from [problem]

 

When was the filing date ?.. you should allow the courts 5 extra days due to backlog. Phone them again say... Friday.

 

The court may well write to them giving them another filing date.. in my case they wrote saying if LTSB hadnt filed their AQ by a date 10 days from the General Order, then their defence would be struck out..

 

Which reminds me.. I must phone the court

[citizenB]

Interesting, going trough the data that they have sent, entries confirming that they do not have a copy of the agreement and an entry that says...

'req props or claim will be issued, if he writes back to say claim will be defended, refer to agent as court will not grant jud'

 

Hmmm, so we take that to mean .. that the court will not grant judgement in their favour ??

[citizenB]

Both AQs received by court and going before judge for directions (why isn't there a smilie for fear?)

 

"eeek" is the best I can do

 

That was my interpretation. I may be misguided however I think I may have to ask for an explanation of the abbreviations at some point;)

 

 

They should have supplied a list of the codes they use with the Subject Access Request.

[citizenB]

I think they are genuinely backed up. My own court has a delay of 10 days at the moment

 

Having said that, there does appear to be quite a few claimants asking for stays or extra time at the moment.

[citizenB]

Still all quiet on the court front...............

However have had a follow up letter re SAR.

Unfortunately, we have not been able to locate a copy of your signed agreement. We can assure you that before we opened your credit card account we would have required sight of a signed agreement.. If you take this matter further, we are confident of our ability to be able to prove this.

See comments below

Copies of DN and enforcement notices are not saved by customer name so copies will not be fouind as part of a DSAR.

However, they should be able to find them by customer account number which is presumably how they store ALL their documents.. or how else would they be able to match them up with the customer name in the first instance

In common with other businesses, we do not provide a precise breakdown ofhow we arrive at our service charges. Dates and amounts of charges will be shown on your statements.

If this went to court they could be forced to disclose this information. It is the reason so many of them coughed up when Bank Charges until the OFT stuck their nose in.

With regards to your cc statements, in accordance with our retention periods we do not hold any statements prior to this date. As your cc account was transferred to our Consumer Debt Recovery dept in xx 2003 there are no statements available after this date either.

See comments below

 

 

 

As Docman says.. No CCA -

 

However, you could point this out to them....

 

 

Misleading statements to debtors

http://www.consumeractiongroup.co.uk/forum/show-post/post-2446950.html

 

 

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. (In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.) (this sentence is no longer applicable)

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice. (THIS IS POSSIBLY WHERE THE CCC'S CURRENT PRACTICE FALLS. THEY ARE REPRESENTING THE DOCUMENTS SUPPLIED AS A TRUE COPY!!!!!!!!!!!!!!)

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

 

May 2008

 

XXXXXXXXXX

 

Head of Credit Investigations and Enforcement, Office of Fair Trading"

 

and this

 

Document Retention

 

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

I would suggest that where a loan has been taken out to repay an earlier agreement, at the very least, a copy of the original agreement should be kept - although this is something that a court may need to rule on.

 

Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

http://www.consumeractiongroup.co.uk/forum/legal-issues/72876-mercers-barclaycard-12.html#post1755248

 

 

HTH:D

[citizenB]

If LTSB are bringing this court action then they must still have had the account at the time of issuing the claim. In which case they should have the documents and retain them for a further 6 years.

 

Or did I miss something ??

[citizenB]

Sorry, I am a bit slow this evening.. who hasnt received LTSB's AQ.. you or the court ?

 

I suspect the court will give them some leeway.. they usually do:(

 

Neither party is obliged to give the other a copy.. it is just courtesy really. However, you should be able to obtain a copy from the court for free, if you ask nicely:D

[citizenB]

Similar to mine, how much time have they suggested the case will take ?

[citizenB]

cymruambyth, are you ok with this or do you need help with anything ?