Lloyds claimform - OH's credit-token, Lloyds Asset Card.Here we go again

[creditcardmug]

Have a read of this let me know what you think.

 

How old is the alleged account?

 

In the Northampton County Court

Claim number xxxxxxxxxx

 

 

Between

 

xxxxxxxxxxxxxxxxx - Claimant

 

and

 

 

xxxxxxxxxxxxxxxxxxx-Defendant

 

 

Defence

 

1. I xxxxxxxxxxxxxxxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

d) The claimant did not send a Letter Before Action as required under the Pre-Action Protocols.

 

 

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

 

 

 

 

The Request for Disclosure

 

9. Further to the case, on DATE I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case from the claimant.

 

10. To Date the claimant has not replied to my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially as I am a Litigant in Person.

 

11. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). 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

 

 

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 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

13. 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

 

13. I refer to the judgment 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 judgment 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."

 

14. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

15. Notwithstanding points 12 and 13, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

16. The claimant is therefore put to strict proof that such a compliant document exists

 

 

17. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

18. It is neither admitted nor 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.

 

19. Notwithstanding point 18, 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)

 

20. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

21. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

22. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

23. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

24. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 9 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxxxxxxxxxxxxxx

 

Date xxxxxxxxxxxxxxxxxxxx

[shirei12]

Thankyou for your work on this. It looks great to me,but I have no legal head . Perhaps others could comment.

Your question.......How old is the alleged account?

Well I will have to check with OH tonight and get back to you on that one. It must be a long while though.

Could this defence be submitted online?

[shirei12]

bump

[creditcardmug]

I think its too big to go online 8000 characters is the max, so send by SD

 

Just need to know if its pre May 2007

[shirei12]

Hi CCM, yes its def pre May 2007,its quite some years old but with no paperwork its difficult to say. Why the importance of that date? Do you have any idea how good TSB are at producing CCA's ?

[creditcardmug]

Hi, thats ok then, it was just the relevant act of parliament bit in the defence.

 

Sorry dont know much about TSB

[shirei12]

I have that printed off and ready to send special delivery,going to post on 13th as the 18th the deadline is a Monday. Unless you think it should be sooner.

I presume para 7 the link to (section of 2006 CCA) should be printed off and enclosed?

[creditcardmug]

Yes print it off as is, its just to show the judge where you have checked on the legislation

[shirei12]

Thats a full 9 pages is that correct? Also should I change the date accessed? Sorry for all the questions.

[creditcardmug]

Hey, one of mine went to 14 pages!, change the date to something recent if you want to, doesn't really matter

 

Questions...no problem:)

[shirei12]

Why would they send this letter saying they have requested judgement.Cheeky beggers even enclosed a standing order mandate. What are they playing at,I am posting defence SD tomorrow,should I inform courts of this letter.Can someone double check my dates for defence please,the claim is dated 15th April.

 

Following our Clients instructions in this matter, you are advised that we have requested the County Court to enter Judgment against you. A Judgment 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 ensuring that there are sufficient funds in your account to honour the Standing Order arrangements.

Alternatively, a book of Bank Giro Credit Slips will be sent to you by our Client under separate cover in the next 7 to 10 days. These can be used at any branch of Lloyds TSB Bank pic free of charge. You may send payments direct to this office, but these must be accompanied by a payment slip. For security reasons, please do not send cash through the post. Cheques should be made payable to Lloyds TSB Bank pic.

Please ensure that payments are made in accordance with the Judgment Order to prevent enforcement proceedings, which will incur additional Court fees and Solicitor costs for which you may be liable.

[r&b]

i got self same letter after having already filed my defence. i sent the reply on post#48 here if it helps. im also following thru with my threat of complaint to the SRA.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/192486-court-claim-o-draft-3.html#post2157417

 

added: i think ur dates r rite 28 +5 by my reckoning

Edited May 12, 2009 by r&b
added

[creditcardmug]

18th May at the very latest, by my reckoning

[shirei12]

Thats what I thought, but what about that letter we got today,does it warrant a reply?:

Following our Clients instructions in this matter, you are advised that we have requested the County Court to enter Judgment against you. A Judgment 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 ensuring that there are sufficient funds in your account to honour the Standing Order arrangements.

Alternatively, a book of Bank Giro Credit Slips will be sent to you by our Client under separate cover in the next 7 to 10 days. These can be used at any branch of Lloyds TSB Bank pic free of charge. You may send payments direct to this office, but these must be accompanied by a payment slip. For security reasons, please do not send cash through the post. Cheques should be made payable to Lloyds TSB Bank pic.

Please ensure that payments are made in accordance with the Judgment Order to prevent enforcement proceedings, which will incur additional Court fees and Solicitor costs for which you may be liable.

[creditcardmug]

As you say its a cheek, although i have seen it before on here

[shirei12]

It certainly is a cheek,still no reply to CPR 31.14 but they have sent a PAYING IN book

[shirei12]

Well 33 days up today and no documents received from SCM.Should I leave it and let them dig themselves further into a hole or should I contact the courts??

[creditcardmug]

You could phone the court for an update, they will probably say its stayed

[shirei12]

I have just checked online and it says transferred to my local court on 17th June?? Looks like they are proceeding Cheeky beggers totally ignored my CPR 31.14. I suppose AQ will be in the post.How can I get them to produce the Agreement before court?

[Dorabell]

I have just checked online and it says transferred to my local court on 17th June?? Looks like they are proceeding Cheeky beggers totally ignored my CPR 31.14. I suppose AQ will be in the post.How can I get them to produce the Agreement before court?

we will have to fill them in together:lol:

[shirei12]

Games up.Reply today with agreement and statements and a letter asking us to withdraw defence

[Viscount Stair]

Game is not up, just moved on a bit.

 

Is the agreement enforceable?

 

Do the statements include charges?

 

Have they provided a DN (and, if so, any proof of service)?

 

Is the DN a valid one?

[shirei12]

Not sure about agreement enforceablity,looks ok to me I have yet to go through statements for charges.No DN supplied.Here is a section of the letter with some dates etc. removed.

 

We write further to your defence filed in respect of the above claim and your request made under CPR 31.14.

A true copy of the front and back of the Credit Agreement with the prescribed terms and conditions for the time the agreement was executed is enclosed. We also enclose copies of our Client's varied terms & conditions effective 01/08/06,30/03/07 and 01/04/08, and the account statements issued from XXXX to September XXXX.

There can be no dispute over the authenticity of the document or that it is, in fact, your signature on the agreement. If this is not the case please advise accordingly. It is for you to say why and in what way the agreement does not comply with the Consumer Credit Act 1974. We will respond appropriately.

A copy of the Default Notice issued by the Bank is not retained. The Default Notice in respect of this debt was issued on the XXXXXXX and sent to XX XXXXXXXXXXXXXXXX.

The issue of the Default Notice is clearly noted on the Bank's records and therefore no proof of postage will be available to the Bank. It is averred that, notwithstanding that postage alone constitutes service, by reason of section 7 of the Interpretation Act 1978, in the absence of proof to the contrary, the Default Notice is in any event deemed to have been delivered. There is no record of the Default Notice being returned unserved by the Post Office.

We sent a letter to you on the XXXXXXXX, in an attempt to try and reach a repayment plan or settlement of the monies outstanding before court action. As there was no response to this letter and the letter was not returned unserved from the post office, a claim was issued in the CCBC, Northampton for the sum outstanding to our clients.

This firm is regulated by The Solicitors Regulation Authority Form 1007A 04/09

[creditcardmug]

"We write further to your defence filed in respect of the above claim and your request made under CPR 31.14.

A true copy of the front and back of the Credit Agreement with the prescribed terms and conditions for the time the agreement was executed is enclosed.

 

This bit in bold concerns me, have they sent a blank copy of an agreement from that time, without your signature? are the prescribed terms on the page you signed?, if they are said to be on the back, is there a reference to this on the front?, how can you be sure the two are indeed the front and back, (i.e. the same document) you signed?

[shirei12]

Hi CCM thanks for looking in once again. Would you like me to upload a copy.It is not a blank agreement.