1st credit and Lloyds TSB Platinum credit card

[hunterandthehunted]

i sent the disclosure statement to **** yesterday by special delivery

and they received it today. i will be taking the courts copy by hand

tomorrow. the deadline is 4pm tomorrow.

 

as yet i have received nothing from ****.....

[lilly white]

 

lilly

[hunterandthehunted]

handed in my standard disclosure to the court today with an hour to spare, phew,

i asked the court whether or not **** have submitted theirs as it was supposed to be submitted to all parties by 4pm today.

it turns out they have made an application to the judge to change the order and was i told to ring the court next wednesday for info.

can i apply to have the case struck out?

Edited November 13, 2009 by hunterandthehunted

[citizenB]

i sent the disclosure statement to **** yesterday by special delivery

and they received it today. i will be taking the courts copy by hand

tomorrow. the deadline is 4pm tomorrow.

 

as yet i have received nothing from ****.....

 

What address are you using to send stuff to **** please ?

 

handed in my standard disclosure to the court today with an hour to spare, phew,

i asked the court whether or not **** have submitted theirs as it was supposed to be submitted to all parties by 4pm today.

it turns out they have made an application to the judge to change the order and was i told to ring the court next wednesday for info.

can i apply to have the case struck out?

 

Change what order, the standard disclosure ??

[hunterandthehunted]

What address are you using to send stuff to **** please ?

 

department cdr

po box 499

upper ground floor

1-5 queens road quadrant

brighton

BN1 3XJ

 

this is the address i have always used and they have replied,

why do you ask?

 

Change what order, the standard disclosure ??

 

yes i got that impression from the clerk or what ever they are called?

what are **** up to do ya think?

Edited November 13, 2009 by hunterandthehunted

[citizenB]

What address are you using to send stuff to **** please ?

 

department cdr

po box 499

upper ground floor

1-5 queens road quadrant

brighton

BN1 3XJ

 

this is the address i have always used and they have replied,

why do you ask?

 

Change what order, the standard disclosure ??

 

yes i got that impression from the clerk or what ever they are called?

what are **** up to do ya think?

 

I have been given a new address for them

 

This one on their letter heading

 

SCM

Solicitors

Department SO

PO Box 499

Second Floor

Three City Park

The Droveway

Hove BN3 7AU

 

And this one from Find a Solicitor

 

SCM Solicitors

Department SO

PO Box 499, 2nd Floor

Hove

East Sussex

BN3 7AU

 

I send my letters to them by Special Delivery and on the RM website, it says :

 

"This item is being sent ot an address that has a redirection in force so it will take an extra day to arrive."

 

I see the PO box number for both addresses, the one I send to and the one you have sent to are the same. I am just wondering what is going on ??

 

 

I am not sure whey they would be writing to the court in respect of the Standard disclosure.. I wonder if they want to say they cant provide something or cant get it done in the time ?? I guess until the court writes to you then you arent going to know. Wierd the clerk wouldnt say though.. they are usually pretty good about things like that.. well some court clerks are

[hunterandthehunted]

so basically if or example, that's say they cannot provide the default notice. is the judge likely to let them off.

 

i assume i carry on with the order. the next step is for witness statements of fact to be exchanged simultaneously by 4pm on 27th november.

 

can u give me an insight please?

[Craftygirl42]

Hunter, I have had the same, but with a different DCA, that they have written to the Court on disclosure, although I did receive a rather small list, and they didnt have the default in their possession. The Court also wouldnt or couldnt say, but did say to ring next week to see what the judge has decided.

[hunterandthehunted]

hi CG,

any idea what this witness statement thing is all about, i am thinking there must be

a standard template letter on here somewhere..

[Craftygirl42]

there isnt a standard template as such, cos each case is different, but if you search witness statement at the top, hopefully you will come up with something you can adapt to suit you. I would only read around as you need to see what the Court has to say, no point in wasting to much time, I am sure LLoyds have had enough of your attention as it is

[lilly white]

h the witness statment is what we will say in court.I AM KEEPING A WATCH

HOWEVER WE NEED TO KNOW WHAT THE COURT WILL SAY NEXT WEEK

ok i would like to read this DO NOT GIVE THE SUMS ON HERE I WOULD LIKE YOU TO LOOK AT THE DEFAULT SECTION IN REGARDS THE SUMS.

THE COURT MAY ASK FOR A WITNESS STATMENT SO WE WILL SAY THE SAME IN THAT HOWEVER AGAIN WE WILL SAY THERE IS NO AGREEDMENT TO COVER THE STATMENTS.

AMENDED DEFENCE

by Order of District Judge xxxxxx dated 18th March 2008

1.The Defendant’s original Defence, filed and served on 4th December 2007, is withdrawn and replaced in its entirety by the Amended Defence below.

2.Save as is otherwise pled by the Defendant hereafter, the Defendant denies all allegations made in the Claimant’s Amended Particulars of Claim in their entirety.

The Amended Particulars of Claim

3.At paragraph 5 iv) of the Amended Particulars of Claim, the Claimant avers that a copy of the Formal Demand is not available, yet has filed and served a copy of the “Formal Demand” with their Amended Particulars of Claim.

4.At paragraph 7 of the Amended Particulars of Claim, the Claimant avers a claim in the sum of £5,872.72, but the actual claim amount on the N1 submitted on 19th November 2007 is in the sum of £5,872.74.

5.In addition to the discrepancy between the claim amount in the Amended Particulars of Claim and the N1, there is a discrepancy between the amount of the Default Notice and the Formal Demand as annexed to the Amended Particulars of Claim (and detailed in 5 iv) of the Amended Particulars of Claim) – the Default Notice is in the sum of £5868.72 and the Formal Demand is in the sum of £5879.72

6.In the Amended Particulars of Claim, the Claimant makes no reference to fulfilling their obligations under s64 Consumer Credit Act (1974) and is put to strict proof thereof.

7.The Claimant’s Amended Particulars of Claim do not comply with CPR 17 PD 17 2.1(1), and the Defendant respectfully requests that the Court gives due consideration to striking out the Claim on this basis.

The Agreement

8.The Claimant has filed and served a copy of the Agreement being relied on in these proceedings, which is annexed to their Amended Particulars of Claim dated 20th March 2008. The Defendant admits that this was an application form, signed by the Defendant on 29th September 2003.

9.At paragraph 3 of the Amended Particulars of Claim, the Claimant relies upon the supplied Agreement being regulated by the Consumer Credit Act (1974).

10.The Agreement is headed “Application form and Agreement” and the first paragraph commences with “If your Application is accepted by our signature above and we send you a copy, then this will form the agreement made between you, the Principal Cardholder and us, Lloyds TSB Bank plc”.

11.The Agreement is unsigned by Lloyds TSB Bank plc and is therefore unexecuted. The Defendant therefore respectfully submits that the Agreement cannot be relied upon as an executed Credit Agreement and it remains as an Application Form.

11.1For the sake of ease and consistency, the document is still referred to as “the Agreement” in the remainder of this Amended Defence – however, this does not constitute any acknowledgement that the document is a valid, executed Agreement under the Consumer Credit Act (1974).

12.Without prejudice to the foregoing paragraphs, the Defendant avers that the Agreement does not contain the prescribed terms as required by the Consumer Credit (Agreements) Regulations SI 1983/1553.

13.The prescribed terms 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

14.Schedule 6 (Signing of agreement) of the Consumer Credit (Agreements) Regulations SI 1983/1553 also states that the prescribed terms must be contained within the signature document.

15.None of the above prescribed terms are contained within the signature document (the Terms & Conditions are dealt with separately at paragraphs 19-24 below)

16.In support of paragraphs 12-15 above, the Defendant cites the following from Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007). When reviewing the provision of Schedule 6 of the Consumer Credit (Agreements) Regulations SI 1983/1553, 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

17.The Defendant therefore respectfully submits that the Agreement relied upon is irrevocably unenforceable and the Court is precluded from making any enforcement order by virtue of s127(3) Consumer Credit Act (1974).

18.It is further denied that the Defendant is liable to the Claimant in any manner, and the Claimant is put to strict proof that any enforceable Agreement between the parties exists.

The Terms & Conditions

19.The Claimant has filed and served a copy of the Terms & Conditions being relied on in these proceedings, which is annexed to their Amended Particulars of Claim dated 20th March 2008.

20.The first paragraph of the Agreement states: “…and the full conditions set out in the Brochure section headed Classic, Gold and Platinum Card Conditions – Customer Copy”, however the Terms & Conditions supplied do not contain any such heading.

21.The Defendant avers that the Terms & Conditions annexed to the Amended Particulars of Claim show no relation to the Agreement provided and there is no clear link between the Agreement and the Terms & Conditions.

22.The final page of the Terms & Conditions annexed to the Amended Particulars of Claim contains a reference “POFFTCS/0705”. In the absence of any other reference to applicable dates within the Terms & Conditions, the Defendant has good reason to believe that the /0705 part of this reference corresponds to the date that these Terms & Conditions were printed and that this date is in fact July 2005.

23.At paragraph 5 of the Amended Particulars of Claim, the Claimant relies upon Clauses 2.1, 2.2, 5.3, 14.1, 14.4 and 14.6 of the original Terms & Conditions as forming part of the original Agreement, yet the Defendant’s signature to the Agreement is dated 29th September 2003.

24.The Defendant therefore respectfully submits that the Terms & Conditions filed and served do not correspond to the Agreement and the Claimant is put to strict proof that the Terms & Conditions as annexed are the Terms & Conditions that were in force at the time of the Agreement.

The Default Notice

25.The Default Notice annexed to the Amended Particulars of Claim is in the sum of £5868.72

26.The Formal Demand annexed to the Amended Particulars of Claim is in the sum of £5879.72

27.The Defendant avers that these amounts include unlawful penalty charges in the sum of £75.00 and interest accruing thereon. These charges are detailed in the Statements submitted by the Claimant and are as below:

19/10/2004

Overlimit Charge

£20.00

17/02/2005

Overlimit Charge

£20.00

17/02/2005

Late Charges

£20.00

26/04/2005

Auto Letter Fees

£15.00

28.The Defendant brings to the Court’s attention the Office of Fair Trading’s statement of 5th April 2006 concerning default charges in credit card contracts and avers that these charges represent a penalty and are therefore unrecoverable at Common Law.

29.In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498; the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Wilson v Love [1896]; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; Ford Motor Co v Armstrong [1915]; Bridge v Campbell Discount Co. Ltd [1962]; Murray v Leisureplay [2004].

30.The Defendant further avers that:

a) The charges debited to the Account:

i) are punitive in nature;

ii) are not a genuine pre-estimate of cost incurred by the Defendant;

iii) exceed any alleged actual loss to the Defendant in respect of any breaches of contract

on the part of the Claimant;

iv) are not intended to represent or relate to any alleged actual loss, but instead unduly

enrich the Defendant which exercises the contractual term in respect of such charges

with a view to profit.

b)Further to 30 (a), the charges debited are penalties rather than liquidated damages. A charge is held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable

c)The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

d)Without prejudice to and in the alternative to 30 (a), (b) and ©, if the Court finds that the charges are not a penalty, then the Claimant contends that they are unreasonable within the meaning of s.15 Supply of Goods and Services Act 1982

31.The Defendant respectfully submits that the Default Notice is, therefore, inaccurate.

32.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 allow the Defendant to submit a counterclaim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

33.In lieu of submitting a counterclaim for damages, the Defendant would respectfully request the Court to consider awarding substantial damages to the Defendant as the Claimant has issued an inaccurate Default Notice. In kpohraror v woolwich building society [1996] C.L.C. 510 it was decided that the amount of the damages should be the amount of the cheque that was dishonoured (the amount of the default) plus substantial damage to reputation of £1,000.

Request under s78(1) Consumer Credit Act (1974)

34.Without prejudice to the above, on 6th February 2007, the Defendant made a formal request (“the request”) to the Claimant under section 78(1) Consumer Credit Act (1974), which states:

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

35.The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) determines that the creditor must comply with the request within 12 working days of receipt of the request;

36.Section 78(6) Consumer Credit Act (1974) determines the consequences of failure to comply with the request, and states:

(6) If the creditor under an agreement fails to comply with subsection (1) -

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

37.In responding to District Judge xxxxxx’s Orders of 18th March 2008, the Claimant was directed to supply documents as per the Draft Order for Directions attached to the Defendant’s Allocation Questionnaire of 2nd January 2008 – if supplied in full, the documents ordered would have the effect of satisfying the request made under s78(1) Consumer Credit Act (1974).

38.As has been explored above, the Agreement supplied is unexecuted, the Terms & Conditions supplied do not correspond to the Agreement supplied, and no statement signed by or on behalf of the creditor as detailed in paragraph 34 above has been supplied.

39.The Defendant therefore avers that the Claimant has still failed to fully comply with the request and continues to remain in default of its obligations under s78(1) Consumer Credit Act (1974).

40.It is further averred that the Claimant has no right of action until such time as this default is remedied.

41.The Defendant therefore respectfully requests that the Court gives due consideration to striking out the Claimant’s Claim by virtue of s78(6) Consumer Credit Act (1974).

Summary

42.For the avoidance of doubt, it is denied that the Defendant is liable to the Claimant in any manner and it is further denied that the Claimant is entitled to the sum of £5872.72 or £5872.74 claimed or any other relief thereon.

43.The Defendant respectfully submits that:

• The Claimant’s Amended Particulars of Claim do not comply with CPR 17 PD 17 2.1(1);
• The Agreement relied upon is irrevocably unenforceable;
• The Terms & Conditions relied upon as forming part of the Agreement do not correspond to the Agreement relied upon;
• The Default Notice is inaccurate; and
• The Claimant has not satisfied the Defendant’s request under s78(1) Consumer Credit Act (1974).

44.In view of the matters pleaded above, the Defendant respectfully requests that the Court:

• Makes an order that the Agreement relied upon is irrevocably unenforceable;
• Makes an order that the Claimant remove any and all credit reference data arising from the unenforceable Agreement and inaccurate Default Notice;
• Strikes out the Claimant’s Claim for the reasons detailed in the Amended Defence; and
• Awards substantial damages to the Defendant as per paragraph 33 above.

Statement of Truth

Dated this xxxxxxxxxxxxx

I believe that the facts stated in this Amended Defence are true.

Signed:

Ok Have A Good Read Any Question I Will Be On Line Sunday For Sure

The Amended Defence Was The Work Of Pt Of The Simple Letter Happy Days

[Tonka99]

H&H

 

You have some really good advice here the Amended Defence is

excellant well done to Lilly ,

 

Wishing you the best

 

Tonks:)

[hunterandthehunted]

lilly,

there are sum overlimit charges and late charges. however this is probably incomplete due to lack of statements.

i noticed that in the seperate list of charges seperate from the statements they have only listed late charges and late payment fees where as on the statement there are some overlimit charges.

Edited November 15, 2009 by hunterandthehunted

[Craftygirl42]

Have you heard from the court yet Hunter. I got my letter this morning and a bit confused, hopefully someone will help me.

[hunterandthehunted]

i rang the court this morning and was told that the claimant had written to the judge to ask for set aside section 2/ b) default notice.

i pointed out that i have not recived the disclosure statement which had other orders on it which should have been filed to all parties by 13.11.09.

they were

1/ copies of the credit agreement and any documents refereed to within it.

2/ statements dated from june 2002 to november 2006.

 

i pointed out that i cannot make an amended defence without this information and they confirmed that nothing had been submitted to the court either.

 

the court also said that the hearing will be by telephone in february.

 

what can i do now as the witness statements have to be filed by the 27.11.09

 

ok at the bottom of the N154 it states that failure to comply with the directions means that i can apply for the case to be struck out.

they have wrangled out of providing a copy of the default notice but as i said in the last post there were other orders. the statements are key to this case and without them i am stuffed.

 

i have made 3 seperate requests for them under sar

and the judge has ordered them to disclose and still they get away with it

[the_shadow]

If a judge has ordered the disclosure and they have not complied then imo you need to apply on an N244 application for the case to be struck out as the claimant is not complying with the courts directions.

The court will not do this automatically, you have to drive it through.

S.

[hunterandthehunted]

thanks for advice shadow,

if i apply for it to be struck out do this overrule the witness statement date and pre trial checklist date whilst i am waiting the outcome

[the_shadow]

An application to strike out as far as I know is treated the same as a summary judgment request and as such halts the normal proceedings of the court.....so yes

However... as your timescales are so tight, even if you get the application in now I would prepare the witness statement and contact the court closer to the time to see if the application has been before the judge and directions given prior to sending it in.

S.

[hunterandthehunted]

thats the whole point i cant provide defence as they have not provided the info, unless i put in embarrassed defence again

[the_shadow]

Then if you dont apply for strikeout you would put that in your witness statement.

S.

[citizenB]

hi H&H, I cant offer any more advice to that provided by the shadow. They are trying it on arent they, LTSB:mad:

[hunterandthehunted]

i have received an application notice from the court. lloyds have applied for part of the directions be set aside because they cannot comply with this part of the order and the part they cannot comply with is supplying the default notice as they do not keep copies.

 

they have got the date wrong ( in there list of evidence )when the default notice was supposedely iissued so it does not match the POC.

 

because lloyds have made this application does this mean that it supersedes other directions by the judge

 

the application will be a telephone hearing in feb 2010

 

is there anyone out there who can help me with this please?

 

i was originally required to provide witness statement by 27 november but on the notice of application hearing it stipulates that not less than 3 days the parties shall file with the court

1/a case summary, a summary of issues and a summary of issues to be dealt with at the hearing, agreed if possible.

2/ a draft of any orders or direction sought and all other documants to be referred to including, where appropiate any statementsbby expert witnesses complying with CPR 35.12 (3) and any statement of costs complying with section 13.5 of the costs practice direction in form 260

 

can someone point me in the right direction for the 1983 regulations regarding default notices

[cymruambyth]

Hi you need to find the post by Banker_rhymes_with on default notices. It is excellent and covers everything. I'm busy tomorrow, but if no-one has linked the post I'll try and find it in the next few days.

[hunterandthehunted]

thanks,

i found it

[cymruambyth]

Great, that post seems to cover DNs comprehensively; any further questions, it may be worth sending BRW a pm.