LTSB/SCm Claim Form received credit card

[hammyhound]

Hi everyone,

 

POC received regarding a LTSB credit card taken out in 1981:eek:

 

No CCA received although Sechari Clark & Mitchell sent me a copy of an application form for a card I cancelled the following day due to higher interest rates. They asked me in branch to sign up to a new card. I send it but had second thoughts overnight and cancelled and reverted back to my old card. This application form was dated 2000. I did check with Lloyds quoting the new account number but they said there has never been any activity on that account and that the only card I had was a LTSB visa card so I then knew SCM were relying on this application form with the new credit card number - this form is totally unenforceable. LTSB admitted they are still looking for the original CCA.

 

Anyhow here are the POC

 

By an agreement in writing and regulation by the CCA 1974 the Claimants issued to the Defendant a credit token, Lloyds TSB Trustcard Visa card for the purpose of the Defendant acquiring goods/services on credit.

 

Clause 6 of the agreement provided that the Claimants would furnish the Defendant with amonthly tatement showing the balance currently due, the mininum payment to be made and the date for payment. If the balance was not paid, then provided the Defendant made the minimum payment or or before such date the remainder of the balance should remain outstanding and the Defendant should pay upon it it per month in accordance with clauses 8 & 9 of the agreement.

 

In breach of the agreement, the Defendant failed to make payment and on 20th June 2008 the Claimants issued a default notice pursuant to Section 87(i) of the Consumer Credit Act 1974.

 

On 22.07.08 the Claimants did issue a formal demand to the Defendant.

 

the Claimants therefore claim the balance due under the agreement.

 

A couple of questions if I may.

 

Done the AOS online defending the action.

 

Will send the CPR letter on Monday to SCM (short for **** btw).

 

If SCM come back with the later application form would I have a good defence as that credit card number is a dormant account no card received and I have told them this before they issued.

 

I cant see how in court they can produce the CCA from the original agreement. BTW they were not called Lloyds TSB then just TSB so it would be interesting to see what they can produce.

 

Altogether since last year charges and interest have amounted to over £4,000.

 

Anything else I need to know.

 

Thanks for your help.

 

HH

[I've got no money]

Sounds like you've got it covered - can I just check if you receive the D/N by the way.

 

In any event I'd argue that the D/N will be invalid as its' gonna have a/c charges on it...I know that Rankine is against me on the point but there is an argument to deal with that.

 

Obviously you need to make sure that you comply with the time limit for filing the defence.

 

I'd also change the time in the cpr letter to 7 days and do a chasing letter after 7 days.

 

If you post anything you get we'll help with the defence and counterclaim

 

How much is the claim by the way - and have they claimed interest

[hammyhound]

Thanks.

 

As far as I know no DN received.

 

For obvious reasons wont give exact figure but just over £12,000. Last statement received summer last year was a balance of £9,000 so the rest is interest and charges. I was quite happy to pay them but they were charging interest at 29% so was never going to pay it, wouldn't freeze interest so CCAd them in October. Had various DCAs chasing. Even LTSB said it would take a while to find and now this. Expected I suppose being a large sum. SCM offered me a discount of £4,000 but my reckoning was that this was the charges and interest so didn't reply.

 

Will send CPR letter on Monday and then chase again like you said. Will report back nearer the time of filing my defence to get advice.

 

Two claim forms in two weeks (other one is HBOS) so I am getting a dab hand of how do it all thanks to this site.

 

HH

[I've got no money]

I think in terms of the name that they should plead the change in name...but we can deal with that in the defence.

 

Anyway - so its' a fast track case - so you should get proper disclosure

 

Why do I have the feeling that this account is going to be irredeemably unenforceable

[hammyhound]

 

Onwards and upwards if I think that is what you mean

 

Will update if I get anything

 

HH

[hammyhound]

Just gone through all the letters from SCM

 

Found this. The first account number is my original account number and the second account number in their letter is the one which was cancelled overnight and which LTSB says is a dormant account.

 

http://i375.photobucket.com/albums/oo198/hammond39/SCMLetter.jpg

 

Now as I have said the second account is the one I cancelled but I get the sneaky suspicion that that is what SCM are relying upon even though it is only an application form which I signed in the branch.

 

As far as I know the balance was never transferred onto the new account and LTSB said for me just to carry on using my card for my old account number.

 

Am I on a sticky wicket here

 

HH

[hammyhound]

Sorry this is what they will rely on I think.

 

http://i375.photobucket.com/albums/oo198/hammond39/LloydsTSBAssetGoldCardAppForm.jpg

 

The terms are overleaf.

 

Something also looks very odd on the application form.

 

Just before "instructions to your bank" and cut line there is a printed date of 16 June 2000. I signed the application form in April. How could I have signed an application form 2 months before a printed date on an application form.

 

HH

 

 

Lloyds TSB say this account number is dormant and the only account I have with them is my present one.

 

Where do I go from here. Is it worth defending this

 

HH

Edited May 10, 2009 by hammyhound
added text

[I've got no money]

Sorry this is what they will rely on I think.

 

http://i375.photobucket.com/albums/oo198/hammond39/LloydsTSBAssetGoldCardAppForm.jpg

 

The terms are overleaf.

 

Something also looks very odd on the application form.

 

Just before "instructions to your bank" and cut line there is a printed date of 16 June 2000. I signed the application form in April. How could I have signed an application form 2 months before a printed date on an application form.

 

HH

 

 

Lloyds TSB say this account number is dormant and the only account I have with them is my present one.

 

Where do I go from here. Is it worth defending this

 

HH

 

That is interesting - I can't read the 16th June 2000 - the other side says April 2000 - bizarre - does anyone else have any thought...

 

I think that there are issues in any event surrounding default notices, not to mention the account charges...

 

Did the T & C on the reverse contain the prescribed terms

[hammyhound]

Here are the terms overleaf.

 

http://i375.photobucket.com/albums/oo198/hammond39/TermsandConditions-Lloyds.jpg

 

Surely if the account had been transferred to another number I should have received a CCA for that number (which incidentally is my original account number) never used the one they are quoting above

 

The 16th June 2000 is on the opposite side of the April 2000 date.

 

If they are relying on this then they should quote this account number in the POC and in which case there is no balance.

 

for example:-

 

45 - opened in 1981

 

49 - signed application form no card received cancelled immediately was told continue to use 45 as before.

 

45 - all debt on this account.

 

CCA requested on 45

 

LTSB can't find CCA on 45 (so bloody old)

 

Solicitors sent the above application form with terms above regarding 49.

 

LTSB says 49 account was sent to archive in 2000.

 

POC says 45 but solicitors are relying on 49 account number.

 

Their letter states here is application form.

 

Heading account number 45 transferred from 49 so where is the CCA for 45.

 

Thanks for your help.

 

Thought it would be easy but looking now I now I have a fight.

 

Sorry quite confusing but I thought this would make you understand.

 

HH

[I've got no money]

Then surely the argument is that the debt they are pursuing has no CCA

 

These T & C's are we sure that they were on the back

[hammyhound]

Well couldn't tell you if they were originally on the back but as far as what they have sent it is a duplex document.

 

If they are chasing for monies on the 49 number which the agreement relates to they should have quoted that in the POC - but they probably wont because they know that account is dormant.

 

They have the cheek though to say the debt was transferred from 49 to 45 when it was never transferred to 49 in the first place.

 

thanks for helping me, I am in a right state. Received the claim form and thought great no cca easy but now not so sure.

 

HH

[I've got no money]

Well couldn't tell you if they were originally on the back but as far as what they have sent it is a duplex document.

 

If they are chasing for monies on the 49 number which the agreement relates to they should have quoted that in the POC - but they probably wont because they know that account is dormant.

 

They have the cheek though to say the debt was transferred from 49 to 45 when it was never transferred to 49 in the first place.

 

thanks for helping me, I am in a right state. Received the claim form and thought great no cca easy but now not so sure.

 

HH

 

 

I think that irrespective of the CCA points there are other issues not least of which are the Default Notices and the issue of account charges

[hammyhound]

This is where I get stumped. If a default notice is issued can interest, late payment and default charges still be applied to the account.

 

Am I right to think that I have filed the AOS on line correctly saying I defend all of the claim.

 

HH

[I've got no money]

My point about default charges - like late payment etc - is that they are unlawful full stop so that because the DN contains them that the DN is defective.

 

Service of a DN does not stop them charging interest

[hammyhound]

Looked through everwhere can't find DN anyway so can't check.

 

I was still receiving statements up to December despite them allegedly issuing a DN in June.

 

HH

[caro]

Irrespective of the CCA issues, was a breakdown of how this amount was broken down?

 

They should be put to strict proof that you owe this amount, so if you can throw the amount into question in your defence, and if charges were included, exactly how the amount of these charges was calculated, I think you should be able to dispose of this fairly easily. Make it clear that if they cannot prove you owe this amount you want any reference of it, including defaults, removing from your credit record.

[hammyhound]

Could someone please post up a relevant defence.

 

Not very good with these things.

 

I would wish to include the fact that no CCA has been produced for the 45 account number on which they are relying on. If they are relying on the other account number then that balance is zero as it was never used.

 

Nothing received by SCM to date.

 

Thanks for your help guys.

 

HH

[hammyhound]

No word from the solicitors as yet have sent a CPR chase up letter.

 

BTW the clauses they refer to in the POC do not relate to the terms and conditions on the back of the agreement.

 

Clause 6 they refer to relates to other provisions about interest

 

Clause 8 & 9 they refer to relate to default charges and termination - not what they are saying in the POC.

 

Something tells me that the terms and conditions on the back of the agreement were not originally there and the POC are standard ones which the solicitors use all the time and don't bother checking their facts.

 

Anyhow will come back next week for your help to draft up a defence.

 

HH

[caro]

When is the defence due in? What have you got so far for it? Can you post what you have so far as it's best not to cut it too fine in case you have any problems or you want advice on it. You can't guarantee someone will be available to help just when you need it so best to crack on I would have thought so there are no last minute panics.;-)

[hammyhound]

Defence due in beginning of June so want to prepare during next week.

 

Nothing received with regard to my CPR request. What I have received is in the attached.

 

http://i375.photobucket.com/albums/oo198/hammond39/LloydsTSBAssetGoldCardAppForm.jpg

 

http://i375.photobucket.com/albums/oo198/hammond39/TermsandConditions-Lloyds.jpg

 

This was sent in relation to my CCA request and was received a day or two before the claim form arrived.

 

The terms and conditions don't relate to the claim form.

 

As per my pevious post, what they have sent me was an application form for a card which was neither received or used as I cancelled it and reverted back to my original account number. According to LTSB there was never any balance on it and the account is dormant.

 

If the solicitors are relying on this CCA then I assume there is no debt, but surely if they are quoting my original account number then they should produce a CCA for that?

 

Thanks for helping.

 

HH

[hammyhound]

Then surely the argument is that the debt they are pursuing has no CCA

 

These T & C's are we sure that they were on the back

 

No I have since found out they weren't, at the top of the page is "bank copy" so these terms were not on the application form as it is a bank copy and why would I sign a bank copy!

 

HH

[hammyhound]

Can anyone help with lodging the defence.

 

Needs to be in by the middle of next week.

 

CCM are you around?

 

HH

[caro]

Sounds like you should make a start on it then. Put down what you have so far, then post it here so others can add their comments and help with it. It would be worth reading around the site for other defences that may have parts which are relevant to your case.

 

 

 

.

[hammyhound]

Just the document in post 7. I already have a defence which I used in another matter but was not too sure whether it would be suitable for this. I don't want to send in a defence and it is completely wrong.

 

In the Northampton County Court Claim

 

Between

 

Claimant

and

Defendants

 

Defence

 

1. We, are the Defendants in this action and make the following statement as our defence to the claim made by Lloyds TSB.

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

3. The Defendants are 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 Defendants 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 we 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.

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

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 we 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 we 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 we 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.

11. The court’s 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 11 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.

14. We 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 misstated. 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."

15. 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

16. Notwithstanding points 11 and 12, 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

17. The Claimant is therefore put to strict proof that such a compliant document exists

18. Should the issue arise where the Claimant seeks to rely upon the fact that they can show that the Defendants have 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

19. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendants put the Claimant to strict proof that said document in the prescribed format was delivered to the Defendants.

20. Notwithstanding point 19, we put the Claimant to strict proof that any default notice sent to us was valid. We 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)

21. 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

 

22. The Defendants deny 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.

23. Without Disclosure of the relevant documentation we are unable to assess if we are 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

24. In view of the matters pleaded above, we 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.

25. Alternatively, should the court order the Claimant to produce the necessary documentation. 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.

 

 

Would this be okay to use for this particular case.

 

Thanks for your help.

 

[I've got no money]

I've been out of circulation - with computer problems

 

I think that you need to specifically include the issues that you have.

 

Have you filed the defence yet - if you haven't I'll make some suggestions